Tuesday, 

October 27, 2009 

Part II 

Environmental 

Protection Agency 

40 CFR Parts 51, 52, 70, et al. 

Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule; Proposed Rule 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
55292 Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51, 52, 70, and 71 

[EPA–HQ–OAR–2009–0517; FRL–8966–7] 

RIN 2060–AP86 

Prevention of Significant Deterioration 

and Title V Greenhouse Gas Tailoring 

Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: EPA is proposing to tailor the 

major source applicability thresholds for 

greenhouse gas (GHG) emissions under 

the Prevention of Significant 

Deterioration (PSD) and title V programs 

of the Clean Air Act (CAA or Act) and 

to set a PSD significance level for GHG 

emissions. This proposal is necessary 

because EPA expects soon to 

promulgate regulations under the CAA 

to control GHG emissions and, as a 

result, trigger PSD and title V 

applicability requirements for GHG 

emissions. If PSD and title V 

requirements apply at the applicability 

levels provided under the CAA, State 

permitting authorities would be 

paralyzed by permit applications in 

numbers that are orders of magnitude 

greater than their current administrative 

resources could accommodate. On the 

basis of the legal doctrines of ‘‘absurd 

results’’ and ‘‘administrative necessity,’’ 

this proposed rule would phase in the 

applicability thresholds for both the 

PSD and title V programs for sources of 

GHG emissions. The first phase, which 

would last 6 years, would establish a 

temporary level for the PSD and title V 

applicability thresholds at 25,000 tons 

per year (tpy), on a ‘‘carbon dioxide 

equivalent’’ (CO2e) basis, and a 

temporary PSD significance level for 

GHG emissions of between 10,000 and 

25,000 tpy CO2e. EPA would also take 

other streamlining actions during this 

time. Within 5 years of the final version 

of this rule, EPA would conduct a study 

to assess the administrability issues. 

Then, EPA would conduct another 

rulemaking, to be completed by the end 

of the sixth year, that would 

promulgate, as the second phase, 

revised applicability and significance 

level thresholds and other streamlining 

techniques, as appropriate. 

DATES: Comments. Comments must be 

received on or before December 28, 

2009. Under the Paperwork Reduction 

Act, comments on the information 

collection provisions are best assured of 

having full effect if the Office of 

Management and Budget (OMB) 

receives a copy of your comments on or 

before November 27, 2009. 

Public Hearing: If anyone contacts us 

requesting to speak at a public hearing 

on or before November 16, 2009, we will 

hold a public hearing approximately 30 

days after date of publication in the 

Federal Register. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2009–0517 by one of the following 

methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. Attention Docket ID No. 

EPA–HQ–OAR–2009–0517. 

• E-mail: a-and-r-docket@epa.gov. 

Attention Docket ID No. EPA–HQ– 

OAR–2009–0517. 

• Fax: (202) 566–9744. Attention 

Docket ID No. EPA–HQ–OAR–2009– 

0517. 

• Mail: EPA Docket Center, EPA West 

(Air Docket), Attention Docket ID No. 

EPA–HQ–OAR–2009–0517, U.S. 

Environmental Protection Agency, 

Mailcode: 2822T, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460. 

Please include a total of 2 copies. In 

addition, please mail a copy of your 

comments on the information collection 

provisions to the Office of Information 

and Regulatory Affairs, Office of 

Management and Budget (OMB), Attn: 

Desk Officer for EPA, 725 17th Street, 

NW., Washington, DC 20503. 

• Hand Delivery: U.S. Environmental 

Protection Agency, EPA West (Air 

Docket), 1301 Constitution Avenue, 

Northwest, Room 3334, Washington, DC 

20004, Attention Docket ID No. EPA– 

HQ–OAR–2009–0517. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. EPA–HQ–OAR–2009– 

0517. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, avoid any form of 

encryption, and be free of any defects or 

viruses. For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/epahome/dockets.htm. 

Docket. All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the Air and Radiation Docket and 

Information Center, EPA/DC, EPA West 

Building, Room 3334, 1301 Constitution 

Ave., NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Joseph Mangino, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–9778; fax 

number: (919) 541–5509; e-mail address: 

mangino.joseph@epa.gov. 

To request a public hearing, please 

contact Pam Long, Air Quality Planning 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–0641; fax 

number: (919) 541–5509 no later than 

November 16, 2009 to request a hearing. 

SUPPLEMENTARY INFORMATION: 


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I. Preamble Glossary of Terms and 

Abbreviations 

The following are abbreviations of 

terms used in the preamble. 

APA Administrative Procedure Act 

ANPR Advance Notice of Proposed 

Rulemaking 

APA Administrative Procedure Act 

AQRV Air Quality Related Value 

BACT Best Available Control Technology 

CAA Clean Air Act 

CAM Compliance Assurance Monitoring 

CBI Confidential Business Information 

CFR Code of Federal Regulations 

CH4 Methane 

CO2 Carbon Dioxide 

CO2e Carbon Dioxide Equivalent 

CO Carbon Monoxide 

EG Emission Guidelines 

EPA U.S. Environmental Protection Agency 

FERC Federal Energy Regulatory 

Commission 

FIP Federal Implementation Plan 

FLM Federal Land Manager 

FTC Federal Trade Commission 

FTE Full-Time Equivalent 

GHG Greenhouse Gas 

GWP Global Warming Potential 

HAP Hazardous Air Pollutant 

HFC Hydrofluorocarbon 

HFE Hydrofluorinated Ether 

ICR Information Collection Request 

IPCC Intergovernmental Panel on Climate 

Change 

MWCs Municipal Waste Combustion 

Facilities 

NAAQS National Ambient Air Quality 

Standard 

NESHAP National Emission Standards for 

Hazardous Air Pollutants 

NOD Notice of Deficiency 

NOX Nitrogen Oxides 

NSPS New Source Performance Standard 

NSR New Source Review 

OMB Office of Management and Budget 

OTAQ Office of Transportation and Air 

Quality 

PFC Perfluorocarbon 

ppm Parts Per Million 

PSD Prevention of Significant Deterioration 

PTE Potential to Emit 

RIA Regulatory Impact Analysis 

SBA Small Business Administration 

SO2 Sulfur Dioxide 

SF6 Sulfur Hexafluoride 

SIP State Implementation Plan 

Tg Teragrams 

TIP Tribal Implementation Plan 

tpy Tons Per Year 

UNFCCC United Nations Framework 

Convention on Climate Change 

II. General Information 

A. Does this action apply to me? 

Entities affected by this proposed 

action include sources in all sectors of 

the economy, including commercial and 

residential sources. Entities potentially 

affected by this proposed action also 

include States, local permitting 

authorities, and tribal authorities. The 

majority of categories and entities 

potentially affected by this action are 

expected to be in the following groups: 

Industry Group NAICSa

Agriculture, fishing, and hunting ............................................................... 11. 

Mining ....................................................................................................... 21. 

Utilities (electric, natural gas, other systems) .......................................... 2211, 2212, 2213. 

Manufacturing (food, beverages, tobacco, textiles, leather) .................... 311, 312, 313, 314, 315, 316. 

Wood product, paper manufacturing ........................................................ 321, 322. 

Petroleum and coal products manufacturing ........................................... 32411, 32412, 32419. 

Chemical manufacturing ........................................................................... 3251, 3252, 3253, 3254, 3255, 3256, 3259. 

Rubber product manufacturing ................................................................. 3261, 3262. 

Miscellaneous chemical products ............................................................. 32552, 32592, 32591, 325182, 32551.

Nonmetallic mineral product manufacturing ............................................. 3271, 3272, 3273, 3274, 3279. 

Primary and fabricated metal manufacturing ........................................... 3311, 3312, 3313, 3314, 3315, 3321, 3322, 3323, 3324, 3325, 3326, 

3327, 3328, 3329. 

Machinery manufacturing ......................................................................... 3331, 3332, 3333, 3334, 3335, 3336, 3339. 

Computer and electronic products manufacturing ................................... 3341, 3342, 3343, 3344, 3345, 4446. 

Electrical equipment, appliance, and component manufacturing ............ 3351, 3352, 3353, 3359. 

Transportation equipment manufacturing ................................................. 3361, 3362, 3363, 3364, 3365, 3366, 3369. 

Furniture and related product manufacturing ........................................... 3371, 3372, 3379. 

Miscellaneous manufacturing ................................................................... 3391, 3399. 

Waste management and remediation ...................................................... 5622, 5629. 

Hospitals/Nursing and residential care facilities ....................................... 6221, 6231, 6232, 6233, 6239. 

Personal and laundry services ................................................................. 8122, 8123. 

Residential/private households ................................................................. 8141. 

Non-Residential (Commercial) ................................................................. Not available. Codes only exist for private households, construction 

and leasing/sales industries. 

a North American Industry Classification System. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this 

proposal will also be available on the 

World Wide Web. Following signature 

by the EPA Administrator, a copy of this 

action will be posted on the EPA’s New 

Source Review (NSR) Web site, under 

Regulations & Standards, at http:// 

www.epa.gov/nsr. 

C. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit this 

information to EPA through http:// 

www.regulations.gov or e-mail. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. Send or deliver 

information identified as CBI only to the 

following address: Roberto Morales, 

OAQPS Document Control Officer 

(C404–02), U.S. EPA, Research Triangle 

Park, NC 27711, Attention Docket ID 

No. EPA–HQ–OAR–2009–0517. 

2. Tips for preparing your comments. 

When submitting comments, remember 

to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 


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1 ‘‘Significant levels’’ for regulated NSR 

pollutants are commonly called ‘‘significance 

levels’’ or ‘‘significance thresholds,’’ and these 

terms are used interchangeably for purposes of this 

proposed action. 

Code of Federal Regulations (CFR) part 

or section number. 

• Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

D. How can I find information about a 

possible public hearing? 

People interested in presenting oral 

testimony or inquiring if a hearing is to 

be held should contact Ms. Pamela S. 

Long, New Source Review Group, Air 

Quality Policy Division (C504–03), U.S. 

EPA, Research Triangle Park, NC 27711, 

telephone number (919) 541–0641. If a 

hearing is to be held, persons interested 

in presenting oral testimony should 

notify Ms. Long at least 2 days in 

advance of the public hearing. Persons 

interested in attending the public 

hearing should also contact Ms. Long to 

verify the time, date, and location of the 

hearing. The public hearing will provide 

interested parties the opportunity to 

present data, views, or arguments 

concerning these proposed rules. 

E. How is the preamble organized? 

The information presented in this 

preamble is organized as follows: 

I. Preamble Glossary of Terms and 

Abbreviations 

II. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. What should I consider as I prepare my 

comments for EPA? 

D. How can I find information about a 

possible public hearing? 

E. How Is the preamble organized? 

III. Overview of Proposed Rule 

IV. Background 

A. What are greenhouse gases and their 

sources? 

B. What are the general requirements of the 

PSD program? 

C. What are the general requirements of the 

title V operating permits program? 

D. What is the current treatment of GHG 

emissions under the title V and PSD 

programs and what future actions may 

change that treatment? 

V. What would be the administrative burdens 

of implementing PSD and title V at the 

current permitting thresholds? 

A. PSD Implications 

B. Title V Implications 

C. ANPR Comments 

VI. What is the legal rationale for this 

proposed Action? 

A. ‘‘Absurd Results’’ Doctrine 

B. ‘‘Administrative Necessity’’ Doctrine 

C. Step-by-Step Process 

D. What were the ANPR comments 

received on GHG tailoring options for 

regulating GHG emissions under PSD 

and title V? 

VII. Streamlining options and tools To 

address the administrative burdens of 

PSD and title V for GHGs 

A. Permit Streamlining Techniques for PSD 

and Title V 

B. Implementation of Streamlining 

Techniques and Overall Approach To 

Administering PSD and Title V Programs 

C. Strategies for Obtaining GHG Reductions 

From Sources Under the Proposed GHG 

Permit Thresholds 

VIII. Description and Rationale of Proposed 

Action 

A. Proposed Permitting Thresholds for 

GHGs 

B. What is the definition of the GHG 

pollutant for the proposed permitting 

thresholds? 

C. What is the rationale for selecting the 

proposed GHG permitting thresholds for 

PSD? 

D. What is the rationale for selecting the 

proposed first-phase GHG permitting 

threshold for title V? 

E. how will EPA assess the GHG permitting 

thresholds in the first phase of the 

tailoring program, and how will epa 

develop the second phase? 

IX. What would be the economic impacts of 

the proposed rule? 

A. What entities are affected by this rule? 

B. What are the estimated benefits to small 

sources due to regulatory relief? 

C. What are the economic impacts of this 

rulemaking? 

D. What are the costs of the proposed rule 

for society? 

X. What implementation issues are related to 

this proposal? 

A. CAA Provisions Concerning SIP 

Requirements for PSD Programs, State 

Submittal Requirements, and EPA 

Action 

B. What PSD-Specific implementation 

considerations are there? 

C. What title V-Specific implementation 

issues are there? 

D. GHGs and title V permit fees 

E. Implementation assistance and support 

XI. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Determination Under Section 307(d) 

XII. Statutory Authority 

III. Overview of Proposed Rule 

EPA is proposing to tailor the major 

source applicability thresholds for GHG 

emissions under the PSD and title V 

programs of the CAA by setting firstphase levels under both programs, 

setting a first-phase PSD significance 

level 1 for GHG emissions, undertaking 

efforts to streamline administrability of 

the programs, and committing to an 

assessment of administrability within 5 

years and a second-phase rulemaking 

within 6 years. 

This proposal is necessary because 

EPA expects soon to promulgate 

regulations under the CAA to control 

GHG emissions from light-duty motor 

vehicles and, as a result, trigger PSD and 

title V applicability requirements for 

GHG emissions. When the light-duty 

vehicle rule is finalized, the GHGs 

subject to regulation under that rule 

would become immediately subject to 

regulation under the PSD program, 

meaning that from that point forward, 

prior to constructing any new major 

source or major modifications that 

would increase GHGs, a source owner 

would need to apply for, and a 

permitting authority would need to 

issue, a permit under the PSD program 

that addresses these increases. 

Similarly, for title V it would mean that 

any new or existing source exceeding 

the major source applicability level for 

those regulated GHGs, if it did not have 

a title V permit already, would have 1 

year to submit a title V permit 

application. 

If PSD and title V requirements apply 

at the applicability levels provided 

under the CAA, many small sources 

would be burdened by the costs of 

individualized PSD control technology 

requirements and permit applications. 

In addition, State permitting authorities 

would be paralyzed by enormous 

numbers of these permit applications; 

the numbers are orders of magnitude 

greater than the current inventory of 

permits and would vastly exceed the 

current administrative resources of the 

permitting authorities. Based on the 

long-established judicial doctrines of 


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‘‘absurd results’’ and ‘‘administrative 

necessity,’’ this proposed rule would 

phase in PSD and title V applicability. 

As the first phase, this rule would 

establish applicability thresholds for 

both the PSD and title V programs at the 

level of 25,000 tpy CO2e, and would 

establish a PSD significance level of 

between 10,000 and 25,000 tpy CO2e. 

This rule also marks the beginning of a 

concerted effort by EPA to streamline 

administration of the PSD and title V 

programs as much as possible and as 

quickly as possible. In addition, EPA 

commits that, within 5 years of 

promulgating the first phase, EPA will 

conduct a study of the permitting 

authorities’ ability to administer the 

programs going forward, and then, 

within a year, conduct rulemaking for 

the second phase of the program. This 

second phase will either confirm the 

first-phase permitting levels or establish 

revised ones or other streamlining 

techniques. EPA also proposes to 

identify as the pollutant subject to PSD 

and title V for applicability purposes the 

group of up to six GHG emissions, each 

one weighted for its global warming 

potential, that are included in 

regulations for their control under the 

CAA. EPA also proposes to conform its 

action on PSD State implementation 

plans (SIPs) and title V programs to 

match the proposed Federal 

applicability requirements. 

More specifically, following this 

overview, section IV of this preamble 

provides background information as to 

the nature of GHG emissions and the 

general requirements of the PSD and 

title V programs. Currently, PSD applies 

to sources that emit at least 100 or 250 

(depending on the source category) tpy 

of pollutants subject to regulation under 

the CAA, and title V generally applies 

to sources that emit at least 100 tpy of 

pollutants subject to regulation under 

the CAA. Currently, PSD and title V 

requirements apply on the basis of 

emissions applicability thresholds that 

are pollutant-specific mass emissions 

rates expressed in tpy. Under PSD, 

construction of a stationary source that 

has the potential to emit (PTE) a 

regulated NSR pollutant in an amount 

exceeding 100 or 250 tpy (depending on 

the source category) (the ‘‘major 

stationary source’’ threshold, in the 

terminology of EPA regulations) triggers 

PSD permitting requirements. PSD 

permitting requirements are also 

triggered if a major stationary source 

undertakes a modification that is 

projected to increase emissions of a 

regulated NSR pollutant above an 

emissions threshold (the ‘‘significance 

level’’). For any particular pollutant, 

this level is zero unless and until EPA 

establishes one on the basis of de 

minimis emissions or administrative 

necessity. Under title V, a source with 

emissions exceeding a ‘‘major source’’ 

emissions threshold—generally 100 tpy 

on a PTE basis—triggers title V 

permitting requirements. 

It should be noted that, as further 

explained in the background section, 

there are no geographic areas currently 

designated ‘‘nonattainment’’ for GHG 

pollutants; as a result, this action affects 

only the PSD program, and we are not 

proposing to amend the ‘‘nonattainment 

NSR’’ provisions of our major NSR 

program at this time, nor are we 

proposing to amend any provisions that 

affect minor NSR permitting. 

Section IV of this preamble further 

describes the current and expected 

future treatment of GHG emissions for 

applicability purposes under those PSD 

and title V programs. In particular, 

section IV describes the light-duty 

motor vehicle rule, which EPA recently 

proposed and expects to promulgate by 

the end of March 2010, and which will 

control GHG emissions from certain 

mobile sources. Under EPA’s current 

interpretation of PSD and title V 

applicability requirements, 

promulgation of this motor vehicle rule 

will trigger the applicability of PSD and 

title V requirements for stationary 

sources that emit GHGs. 

In section V of this preamble, EPA 

describes the administrative burdens on 

permitting authorities if the 

requirements of PSD and title V 

programs are triggered without having 

this tailoring rule in place. In short, 

without this tailoring rule, the 

administrative burdens would be 

immense, and they would immediately 

and completely overwhelm the 

permitting authorities. Without this 

tailoring rule, permitting authorities 

would receive approximately 40,000 

PSD permit applications each year— 

currently, they receive approximately 

300—and they would be required to 

issue title V permits for approximately 

some six million sources—currently, 

their title V inventory is some 15,000 

sources. These increases are measured 

in orders of magnitude. We estimate the 

additional resource burdens in full-time 

equivalents (FTEs) and time delays in 

processing permits, but the sheer 

numbers of additional permits by 

themselves paint the picture of the 

overwhelming administrative burdens. 

In section VI of this preamble, we 

describe the legal rationale for this 

tailoring rule. The judicial doctrine of 

‘‘absurd results’’ authorizes departure 

from a literal application of statutory 

provisions if it would produce a result 

that is inconsistent with other statutory 

provisions or congressional intent, and 

particularly one that would undermine 

congressional purposes. The judicial 

doctrine of ‘‘administrative necessity’’ 

authorizes an agency to depart from 

statutory requirements if the agency can 

demonstrate that the statutory 

requirements, as written, are impossible 

to administer. However, the agency 

must first attempt to mitigate 

administrative problems through 

techniques consistent with the statutory 

requirements, and, if variance from the 

statutory requirements nevertheless is 

necessary to allow administrability, the 

variance must be limited as much as 

possible. 

As discussed in section VI of this 

preamble, to apply the statutory PSD 

and title V applicability thresholds to 

sources of GHG emissions would bring 

tens of thousands of small sources and 

modifications into the PSD program 

each year, and millions of small sources 

into the title V program. This 

extraordinary increase in the scope of 

the permitting programs, coupled with 

the resulting burdens on the small 

sources and on the permitting 

authorities, were not contemplated by 

Congress in enacting the PSD and title 

V programs. Moreover, the 

administrative strains would lead to 

multi-year backlogs in the issuance of 

PSD and title V permits, which would 

undermine the purposes of those 

programs. Sources of all types—whether 

they emit GHGs or not—would face long 

delays in receiving PSD permits, which 

Congress intended to allow construction 

or expansion. Similarly, sources would 

face long delays in receiving title V 

permits, which Congress intended to 

promote enforceability. For these 

reasons, the absurd results doctrine 

applies to avoid a literal application of 

the thresholds. 

By the same token, the impossibility 

of administering the permit programs 

brings into play the administrative 

necessity doctrine. This doctrine also 

justifies EPA to avoid a literal 

application of the threshold provisions. 

Instead, these doctrines authorize 

EPA to apply the PSD and title V 

applicability provisions through a 

phased program. The first phase would 

establish the applicability thresholds at 

the 25,000-tpy levels and vigorously 

develop streamlining measures that 

would facilitate applying PSD and title 

V on a broader scale with overburdening 

sources and administrators. In this 

manner, the phased approach reconciles 

the language of the statutory provisions 

with the results of their application and 

with congressional intent. 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
55296 Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 

2The Intergovernmental Panel on Climate Change 

(IPCC) describes GWP as an index, based upon 

radiative properties of well-mixed GHGs, measuring 

the radiative forcing of a unit mass of a given wellmixed greenhouse gas in the present-day 

atmosphere integrated over a chosen time horizon, 

relative to that of CO2. The GWP represents the 

combined effect of the differing times these gases 

remain in the atmosphere and their relative 

effectiveness in absorbing outgoing thermal infrared 

radiation. (Intergovernmental Panel on Climate 

Change (IPCC), Glossary of Terms used in the IPCC 

Fourth Assessment Report, WG1). http:// 

www.ipcc.ch/ 

In section VII of this preamble, we 

describe the streamlining techniques— 

short of limiting the applicability of PSD 

and title V to higher-emitting sources— 

that may be available to improve 

administrability. These techniques 

range from defining ‘‘potential to 

emit’’—which is the basis for 

calculating the statutory thresholds—to 

be closer to actual emissions, to general 

permits and presumptive best available 

control technology (BACT), which is the 

principal control requirement under the 

PSD program. Although these 

techniques offer promise over the long 

term to improve administrability, they 

cannot be in place by March 2010, when 

we expect PSD and title V requirements 

to be triggered for GHG emitters, or 

within a several-year period thereafter. 

Accordingly, this tailoring rule is 

necessary at this time. 

In section VIII of this preamble, we 

describe in detail our proposed tailoring 

rule. For the PSD program, we are 

proposing to establish, as the first phase, 

the GHG ‘‘major stationary source’’ 

emissions applicability threshold level 

at 25,000 tpy on a CO2e basis. That is, 

sources that emit at this level or higher 

would be considered ‘‘major stationary 

sources’’ and therefore would become 

subject to PSD requirements when they 

construct or modify. We are also 

proposing to establish in this first phase 

a PSD ‘‘significance level’’ emissions 

rate for GHGs and are proposing a range 

for that value of 10,000 to 25,000 tpy 

CO2e for comment. The ‘‘significance’’ 

level is important for determining 

whether existing sources that make 

physical or operational changes become 

subject to PSD and for determining 

whether sources that are subject to PSD 

for other pollutants are also subject to 

PSD for their GHG emissions. 

As further described in section VIII of 

this preamble, for the title V operating 

permits program, we are also proposing 

to establish the GHG emissions 

applicability threshold level at 25,000 

tpy CO2e for this first phase. That is, 

sources that emit at this level or higher 

would be considered ‘‘major sources’’ 

and therefore would become subject to 

title V requirements. 

As further described in section VIII of 

this preamble, as an integral part of the 

tailoring rule, EPA proposes to commit 

to complete, within 5 years of a final 

rule, a study to evaluate the actual 

administrative burden resulting from 

the proposed GHG permitting 

thresholds and possible other 

thresholds, and the progress of 

developing streamlining techniques and 

augmentation of permitting authorities’ 

resources. In addition, EPA commits to 

propose and promulgate a rulemaking— 

informed by the study—within 6 years 

from the effective date of a final version 

of this rulemaking (i.e., 1 year from the 

completion of the study) that would 

establish the second phase, which 

would either reaffirm the GHG 

permitting thresholds, promulgate 

alternative thresholds, adopt other 

streamlining techniques, and/or take 

other action consistent with the goal of 

expeditiously meeting CAA 

requirements in light of the 

administrative burden that remains at 

that time. 

During this first phase of the tailoring 

program, EPA proposes to make a 

concerted effort to assess and 

implement streamlining options, tools, 

and guidance—some of which we 

describe in section VII of this 

preamble—to reduce the administrative 

burden on permitting authorities when 

implementing PSD and title V for GHGs. 

EPA proposes to undertake as many of 

these streamlining actions as possible 

and to do so as quickly as possible. In 

addition, for larger sources that would 

be subject to PSD and title V 

requirements during the first phase, 

EPA intends to work closely with the 

stakeholders to develop efficient 

methods for implementing those 

requirements. For smaller sources for 

which PSD and title V requirements 

would not apply during the first phase 

due to the increase in the major source 

applicability threshold, EPA intends to 

identify cost-effective opportunities 

available as soon as possible to achieve 

GHG reductions through means other 

than PSD and title V (e.g., energy 

efficiency and other appropriate 

measures). 

Section VIII of this preamble further 

describes our proposal to define the 

relevant pollutants as the group of up to 

six GHG emissions that have been 

regulated for control, calculated on the 

basis of global warming potential 

(GWP).2

Section IX of this preamble describes 

the burden and economic impacts of the 

proposed rule. 

Section X of this preamble discusses 

implementation issues related to this 

proposal. These include conforming 

EPA approval of the PSD programs in 

SIPs and EPA approval of the State title 

V programs to be consistent with the 

proposed applicability threshold levels. 

By way of background, as soon as EPA 

promulgates a rule regulating for control 

of GHG emissions—which we expect to 

occur with the proposed light-duty 

motor vehicle rule, scheduled for 

promulgation at the end of March 

2010—stationary sources will become 

subject to PSD and title V requirements. 

The major source thresholds for PSD 

and title V, significance level for PSD, 

and identification of GHGs subject to 

PSD and title V as proposed in this 

tailoring rule would each take effect 

immediately in the Federal PSD 

program (codified at 40 CFR 52.21) and 

in the Federal operating permits 

program (codified at 40 CFR 71), as 

applicable. To conform EPA action on 

PSD SIPs and State title V programs, 

EPA intends to limit its previous 

approval of those SIPs and title V 

programs to cover only the permitting of 

sources of GHG emissions at or above 

the proposed threshold levels. EPA will 

take no action on—that is, EPA will not 

disapprove—the PSD SIPs and title V 

programs to the extent they require 

permitting of GHG emitters at levels 

below the proposed thresholds. EPA 

proposes to take this action by virtue of 

its authority to reconsider its previous 

regulatory actions. Section X of this 

preamble also explains how we propose 

to address the treatment of GHGs in the 

fee programs under title V. 

IV. Background 

A. What are greenhouse gases and their 

sources? 

Gases that trap heat in the atmosphere 

are often called GHGs. Some GHGs such 

as carbon dioxide (CO2) are emitted to 

the atmosphere through natural 

processes as well as human activities. 

Other gases, such as fluorinated gases, 

are created and emitted solely through 

human activities. The primary GHGs of 

concern directly emitted by human 

activities include CO2, methane (CH4), 

nitrous oxide (N2O), hydrofluorocarbons 

(HFCs), perfluorocarbons (PFCs), and 

sulfur hexafluoride (SF6). These six 

primary GHGs will, for the purposes of 

this proposal, be referred to collectively 

as ‘‘the six primary GHGs.’’ These six 

gases, once emitted, remain in the 

atmosphere for decades to centuries. 

Thus, they become well-mixed globally 

in the atmosphere and their 

concentrations accumulate when 

emissions exceed the rate at which 

natural processes remove them from the 

atmosphere. The heating effect caused 

by the human-induced buildup of GHGs 


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3 ‘‘Document for Endangerment and Cause or 

Contribute Findings for Greenhouse Gases under 

Section 202(a) of the Clean Air Act,’’ Climate 

Change Division, Office of Atmospheric Programs, 

U.S. Environmental Protection Agency, 

Washington, DC. April 17, 2009. 4For additional information about the Inventory 

of U.S. Greenhouse Gas Emissions and Sinks, and 

for more information about GHGs, climate change, 

climate science, etc., see EPA’s climate change Web 

site at http://www.epa.gov/climatechange/. 5 ‘‘Inventory of U.S. Greenhouse Gas Emissions 

and Sinks: 1990–2007,’’ U.S. Environmental 

Protection Agency, EPA 430–R–09–004, April 15, 

2009. Table 1–2, p. 1–6. http://www.epa.gov/ 

climatechange/emissions/usinventoryreport.html. 

6EPA’s regulations employ the term ‘‘major 

stationary source’’ in lieu of ‘‘major emitting 

facility.’’ e.g., 40 CFR 52.21(a)(2)(i), (b)(1)(i). 

in the atmosphere is very likely the 

cause of most of the observed global 

warming over the last 50 years. A 

detailed explanation of climate change 

and its impact on health, society, and 

the environment is included in EPA’s 

technical support document for the 

endangerment finding proposal (Docket 

ID No. EPA–HQ–OAR–2009–0171– 

0137).3

In the U.S., the combustion of fossil 

fuels (e.g., coal, oil, gas) is the largest 

source of CO2 emissions and accounts 

for 80 percent of total GHG emissions. 

More than half the energy-related 

emissions come from large stationary 

sources such as power plants, while 

about a third come from transportation. 

Of the six primary GHGs, four (CO2, 

CH4, N2O, and HFCs) are emitted by 

motor vehicles. Industrial processes 

(such as the production of cement, steel, 

and aluminum), agriculture, forestry, 

other land use, and waste management 

are also important sources of GHG 

emissions in the U.S. These emissions 

are inventoried at a national level by 

EPA in the Inventory of U.S. 

Greenhouse Gas Emissions and Sinks.4

Different GHGs have different heattrapping capacities. It is useful to 

compare them to each other through the 

use of the CO2e metric. This metric 

incorporates both the heat-trapping 

ability and atmospheric lifetime of each 

GHG and can be used to adjust the 

quantities, in tpy, of all GHGs relative 

to the GWP of CO2. When quantities of 

the different GHGs are multiplied by 

their GWPs, the different GHGs can be 

summed and compared on a CO2e basis. 

Depending on which GWP values are 

used, the calculated GHG emissions on 

a CO2e basis will vary. Throughout this 

preamble, we are applying the GWP 

values established by the 

Intergovernmental Panel on Climate 

Change (IPCC) in its Second Assessment 

Report (SAR) (IPCC 1996).5 For 

example, CH4 has a GWP of 21, meaning 

each ton of CH4 emissions would have 

21 times as much impact on global 

warming over a 100-year time horizon 

as 1 ton of CO2 emissions. Thus, on the 

basis of heat-trapping capability, 1 ton 

of CH4 would equal 21 tons of CO2e. 

The GWPs of the six primary GHGs 

range from 21 (for CH4) up to 23,900 (for 

SF6). Aggregating all GHGs on a CO2e 

basis at the source level allows a facility 

to evaluate its total GHG emissions 

contribution based on a single metric. 

For a complete list of the applicable 

GWP values for each GHG, please refer 

to EPA’s Inventory of U.S. Greenhouse 

Gas Emissions and Sinks. 

B. What are the general requirements of 

the PSD program? 

1. Overview of the PSD Program 

The PSD program is a preconstruction 

review and permitting program 

applicable to ‘‘new major stationary 

sources’’ and ‘‘major modifications’’ at 

existing major stationary sources, in the 

terminology of EPA’s implementing 

regulations. The PSD program applies in 

areas meeting the health-based National 

Ambient Air Quality Standards 

(NAAQS) or for which there is 

insufficient information to determine 

whether they meet the NAAQS 

(‘‘unclassifiable’’ areas). The PSD 

program is contained in part C of title 

I of the CAA. The ‘‘nonattainment NSR’’ 

program applies in areas not meeting 

the NAAQS and in the Ozone Transport 

Region, and is implemented under the 

requirements of part D of title I of the 

CAA. Collectively, we also commonly 

refer to these two programs as the major 

NSR program. The governing EPA rules 

are contained in 40 CFR 51.165, 51.166, 

52.21, 52.24, and part 51, appendices S 

and W. There is no NAAQS for CO2 or 

any of the other primary GHGs, nor does 

EPA plan to promulgate one; therefore, 

we do not anticipate that the 

‘‘nonattainment’’ major NSR program 

will apply to GHGs. 

The applicability of the PSD program 

to a particular source must be 

determined in advance of construction 

or modification and is pollutantspecific. The primary criterion in 

determining PSD applicability is 

whether the proposed project is 

sufficiently large (in terms of its 

emissions) to be a major stationary 

source or major modification, both of 

which are described below. 

a. Major Stationary Sources 

Under PSD, a ‘‘major stationary 

source’’ is any source type belonging to 

a specified list of 28 source categories 

which emits or has a PTE of 100 tpy or 

more of any pollutant subject to 

regulation under the CAA, or any other 

source type which emits or has the 

potential to emit such pollutants in 

amounts equal to or greater than 250 

tpy. See, e.g., 40 CFR 52.21(b)(1). We 

may refer to these levels as the 100/250- 

tpy thresholds. A new source with a 

PTE at or above the applicable ‘‘major 

stationary source threshold’’ amount is 

subject to major NSR. These limits 

originate from section 169 of the CAA, 

which applies PSD to any ‘‘major 

emitting facility’’ 6 and defines the term 

to include any source with a PTE of 100 

or 250 tpy, depending on source 

category. 

b. Major Modifications 

PSD applies to not only new 

construction but also to existing sources 

that undertake a ‘‘major modification,’’ 

which is defined in terms of the 

following three criteria: 

(1) A physical change in, or change in 

the method of operation of, a ‘‘major 

stationary source’’ must occur; 

(2) The change must result in an 

increase in emissions that is 

‘‘significant,’’ that is, equal to or above 

the significance level defined for the 

pollutant in question, e.g., in 40 CFR 

52.21(b)(23)); and 

(3) The increase in emissions 

resulting from the change must be a 

significant net emissions increase. In 

other words, when the increase from the 

project is added to other 

contemporaneous increases or decreases 

in actual emissions at the source, the net 

emissions increase must be significant 

(equal to or above the significance level 

defined, e.g., in 40 CFR 52.21(b)(23)). 

Generally, significance levels for PSD 

are pollutant-specific emissions rates. 

For example, the significance level for 

emissions of nitrogen oxides (NOX) is 40 

tpy. See, e.g., 40 CFR 52.21(b)(23)(i). 

However, for a regulated NSR pollutant 

for which no specific significance level 

is listed, PSD applies to ‘‘any increase.’’ 

See, e.g., 40 CFR 52.21(b)(23)(ii). Thus, 

if GHGs were to become subject to 

regulation and PSD review, and no 

significance levels for GHGs had been 

established, the default value would be 

‘‘zero.’’ 

EPA has promulgated significance 

levels for criteria pollutants and certain 

other pollutants, which EPA generally 

based on levels that represent a de 

minimis contribution to air quality 

problems. For example, for certain 

pollutants regulated under the new 

source performance standards (NSPS), 

EPA generally based significance levels 

at 20 percent of the NSPS. These 

concentrations were compared to 

available health and welfare data to 

assure that significant adverse effects 


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7EPA established significance levels for 

hazardous air pollutants on a similar basis, but 

subsequently, in the 1990 Clean Air Act 

Amendments, Congress mooted them by exempting 

hazardous air pollutants from PSD, under CAA 

section 112(b)(6). 

were avoided.7 To this point, EPA has 

not established a significance level for 

GHGs, and we currently do not have an 

adequate supporting record to establish 

a similar health and welfare-based de 

minimis level for significance for GHGs. 

2. General Requirements for PSD 

Under the PSD program, one of the 

principal requirements is that a new 

major source or major modification 

must apply BACT, which is determined 

on a case-by-case basis taking into 

account, among other factors, the cost 

and effectiveness of the control. EPA 

has developed a ‘‘top-down’’ approach 

for BACT review which involves a 

decision process that includes 

identification of all available control 

technologies, elimination of technically 

infeasible options, ranking of remaining 

options by control and cost 

effectiveness, and then selection of 

BACT. Under PSD, once a source is 

determined to be major for any 

regulated pollutant, a BACT review is 

performed for each attainment pollutant 

whose emissions exceed its PSD 

significance level as part of new 

construction or modification projects at 

the source. 

In addition to performing a BACT 

review, the source must analyze the 

impact of the project on ambient air 

quality to assure that no violation of any 

NAAQS or PSD increments will result, 

and must analyze impacts on soil, 

vegetation, and visibility. Sources or 

modifications that would impact Class I 

areas (e.g., national parks) may be 

subject to additional requirements to 

protect air quality related values 

(AQRVs) that have been identified for 

such areas. Under PSD, if a source 

proposes to locate within 100 kilometers 

of a Class I area, the Federal Land 

Manager (FLM) is notified and is 

responsible for evaluating a source’s 

projected impact on the AQRVs and 

recommending either approval or 

disapproval of the source’s permit 

application based on anticipated 

impacts. There are currently no NAAQS 

or PSD increments established for 

GHGs, and therefore these PSD 

requirements would not apply to GHG 

emissions sources, even when PSD is 

triggered for GHG emissions sources. 

However, as noted previously, if PSD is 

triggered for a GHG emissions source, 

all regulated NSR pollutants which the 

new source emits in significant amounts 

would be subject to PSD requirements. 

Therefore, if a facility triggers review for 

regulated NSR pollutants that are nonGHG pollutants for which there are 

established NAAQS or increments, the 

air quality, additional impacts, and 

Class I requirements would apply to 

those pollutants. 

When the reviewing authority reaches 

a preliminary decision to authorize 

construction of a proposed new major 

source or major modification, it must 

provide notice of the preliminary 

decision and an opportunity for 

comment by the general public, 

industry, and other interested persons. 

After considering and responding to the 

comments, the reviewing authority may 

issue a final determination on the 

construction permit in accordance with 

the PSD regulations. 

Usually NSR permits are issued by 

State or local air pollution control 

agencies. In these cases, State and local 

air pollution control agencies may have 

their own permit programs that are 

approved by EPA in the SIP or they may 

be delegated the authority to issue 

permits on behalf of EPA. In some areas, 

the EPA issues the permits. 

3. Minor NSR Program 

The permitting program for minor 

stationary sources is addressed by 

section 110(a)(2)(C) of the CAA. We 

commonly refer to this program as the 

minor NSR program. A minor stationary 

source means a source whose PTE is 

lower than the major source 

applicability threshold for a particular 

pollutant as defined in the applicable 

nonattainment major NSR program or 

PSD program. As with nonattainment 

NSR requirements, the CAA does not 

require that minor source programs 

apply to GHGs because there are no 

NAAQS for GHGs. 

C. What are the general requirements of 

the title V operating permits program? 

1. Overview of Title V 

The title V operating permits program 

was added to the CAA by Congress in 

1990. The operating permits program 

requirements under title V are intended 

to improve sources’ compliance with 

the requirements of the CAA. In 

summary, the title V program requires 

major sources (generally defined as 

sources that actually emit or have the 

potential to emit 100 tpy) and certain 

other sources to obtain operating 

permits that: Consolidate all CAA 

requirements into a single document; 

provide for review of these documents 

by EPA, States, and the public; and 

require permit holders to track, report, 

and annually certify their compliance 

status with respect to their permit 

requirements. 

Title V will be triggered for GHG 

emissions when EPA regulates them for 

control under another provision of the 

CAA. Section 502(a) of the Act sets forth 

the sources required to obtain operating 

permits under title V. These sources 

include: (1) Any affected source subject 

to acid rain rules under title IV of the 

Act; (2) any major source; (3) any source 

required to have a permit under part C 

or D (PSD/NSR) of title I of the Act; (4) 

‘‘any source subject to section 111 

[NSPS] or section 112 [NESHAP];’’ and 

(5) any other source designated by rule. 

See also 40 CFR 70.3(a) and 71.3(a). The 

requirements of section 502(a) are 

primarily implemented through the 

operating permit program rules at 40 

CFR part 70, which sets out the 

minimum requirements for title V 

operating permit programs administered 

by State, local, and tribal permitting 

authorities (57 FR 32261; July 21, 1992); 

and part 71, the Federal operating 

permit program requirements that apply 

where EPA or a delegate agency 

authorized by EPA to carry out a Federal 

permit program is the title V permitting 

authority (61 FR 34228, July 1, 1996). 

Title V generally does not add new 

substantive requirements for pollution 

control, but it does require that each 

permit contain all of a facility’s 

‘‘applicable requirements’’ under the 

CAA, and that certain procedural 

requirements be followed, especially 

with respect to compliance with these 

requirements. ‘‘Applicable 

requirements’’ for title V purposes 

include all stationary source 

requirements, but do not include mobile 

source requirements. 

2. Title V Permit Requirements 

When a source becomes subject to 

title V, it must apply for a permit within 

1 year of the date it became subject. The 

application must include identifying 

information, a description of emissions 

and other information necessary to 

determine applicability of CAA 

requirements, identification and 

certification of the source’s compliance 

status with these requirements 

(including a schedule to come into 

compliance for any requirements for 

which the source is currently out of 

compliance), a statement of the methods 

for determining compliance, and other 

information. The permitting authority 

then uses this information to issue the 

source a permit to operate, as 

appropriate. A title V source may not 

operate without a permit, except that if 

it has submitted a complete application, 

the submission acts as a ‘‘shield’’ that 


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authorizes it to operate while awaiting 

issuance of its permit. 

Title V permits must contain the 

following main elements: (1) Emissions 

standards to assure compliance with all 

applicable requirements; (2) a duration 

of no more than 5 years, after which the 

permit must be renewed; (3) monitoring, 

recordkeeping, and reporting 

requirements necessary to assure 

compliance, including a semiannual 

report of all required monitoring and a 

prompt report of each deviation from a 

permit term; (4) provisions for payment 

of permit fees as established by the 

permitting authority such that total fees 

collected are adequate to cover the costs 

of developing and implementing the 

program; and (5) a requirement for an 

annual compliance certification by a 

responsible official at the source. An 

additional specific monitoring 

requirement, compliance assurance 

monitoring (CAM), also applies to some 

emissions units operating at major 

sources with title V permits. The CAM 

rule requires source owners to design 

and conduct monitoring of the operation 

of add-on control devices used to 

control emissions from moderately large 

emissions units. Source owners use the 

monitoring data to evaluate, verify, and 

certify the compliance status for 

applicable emissions limits. The CAM 

rule is implemented in conjunction with 

the schedule of the operating permits 

program. While these are the main 

elements relevant to a discussion of 

GHGs, there are numerous other permit 

content requirements and optional 

elements, as set forth in the title V 

regulations at 40 CFR 70.6. 

In addition to the permit content 

requirements, there are procedural 

requirements that permitting authorities 

(typically States) must follow in issuing 

title V permits, including (1) 

determining and notifying the applicant 

that its application is complete; (2) 

providing public notice and a 30-day 

public comment period on the draft 

permit, as well as the opportunity for a 

public hearing; (3) giving notice to EPA 

and affected States; and (4) preparing 

and providing to any requester a 

statement of the legal and factual basis 

of the draft permit. The permitting 

authority must take final action on 

permit applications within 18 months of 

receipt. EPA also has 45 days from 

receipt of a proposed permit to object to 

its issuance, and citizens have 60 days 

to petition EPA to object. Permits may 

also need to be revised or reopened if 

new requirements come into effect or if 

the source makes changes that conflict 

with, or necessitate changes to, the 

current permit. Permit revisions and 

reopenings follow procedural 

requirements which vary depending on 

the nature of the necessary changes to 

the permits. 

D. What is the current treatment of GHG 

emissions under the title V and PSD 

programs and what future actions may 

change that treatment? 

This section of the preamble describes 

the current treatment of GHG emissions 

under the PSD and title V programs— 

under which GHG emissions are not 

included for purposes of determining 

applicability—including recent 

regulatory and legal developments 

related to this action, and then describes 

what future action may change that 

treatment. 

1. Regulation of GHGs Under the CAA 

a. The Massachusetts U.S. Supreme 

Court Decision 

On April 2, 2007, in Massachusetts v. 

EPA, 549 U.S. 497 (2007), the U.S. 

Supreme Court held that GHGs are air 

pollutants covered by the CAA. 

Therefore, the Court further held that 

GHG emissions are subject to CAA 

section 202(a) under which the 

Administrator must determine whether 

or not emissions of GHGs from new 

motor vehicles or motor vehicle engines 

cause or contribute to air pollution 

which may reasonably be anticipated to 

endanger public health or welfare, or 

whether the science is too uncertain to 

make a reasoned decision. This decision 

resulted from a petition for rulemaking 

under section 202(a) filed by more than 

a dozen environmental, renewable 

energy, and other advocacy 

organizations. As a result of this 

decision, EPA decided to issue an 

advance notice of proposed rulemaking 

(ANPR), discussed later in this 

preamble, soliciting comment on how 

GHG emissions should be regulated 

under the CAA. 

b. The EPA ANPR 

On July 30, 2008, EPA published an 

ANPR in the Federal Register entitled, 

‘‘Regulating Greenhouse Gas Emissions 

under the CAA.’’ 73 FR 44354, July 30, 

2008. This ANPR presented information 

relevant to, and solicited public 

comment on how to respond to, the U.S. 

Supreme Court’s decision in 

Massachusetts v. EPA, holding that 

GHGs are air pollutants subject to the 

CAA. The notice reviewed the various 

CAA provisions (including the PSD and 

title V requirements) that may be 

applicable to sources of GHGs, 

examined the issues that regulating 

GHGs under those provisions may raise, 

provided information regarding 

potential regulatory approaches and 

technologies for reducing GHG 

emissions, and raised issues relevant to 

possible legislation and the potential for 

overlap between legislation and CAA 

regulation. 

In addition, the notice described and 

solicited comment on petitions the EPA 

had received to regulate GHG emissions 

from ships, aircraft, and nonroad 

vehicles such as farm and construction 

equipment. Finally, the notice discussed 

several other actions concerning 

stationary sources for which EPA has 

received comment regarding the 

regulation of GHG emissions, including 

promulgation of performance standards 

or guidelines under CAA section 111 for 

new and existing sources in various 

source categories. The EPA included 

options for phasing in the PSD program 

and title V programs to mitigate burdens 

that would occur if GHGs were to be 

regulated under the CAA and solicited 

comments on those actions. Section V.C 

of this preamble summarizes some of 

the substantive comments received on 

the ANPR. In issuing the ANPR, EPA 

made clear that it believed that the best 

way to address the problems posed by 

GHG emissions would be through 

legislation directly addressing GHG 

emissions, rather than through use of 

the tools in the CAA. 

2. Current Applicability of the PSD 

Program to Sources of GHG Emissions 

As explained earlier in this preamble, 

EPA treats sources as subject to PSD 

requirements only if they emit 

‘‘regulated NSR pollutants’’ at specified 

threshold levels. Currently, EPA does 

not consider GHG emissions to be 

‘‘regulated NSR pollutants’’ under the 

PSD program because GHG emissions 

have not, thus far, been subject to 

regulation requiring control under the 

CAA. As discussed later in this 

preamble, EPA is in the process of 

reviewing its approach to PSD 

applicability and is in the process of 

developing a rulemaking—the light-duty 

motor vehicle rule—that will trigger 

PSD applicability for GHG emissions. 

a. PSD Interpretive Memorandum 

EPA is currently reconsidering the 

PSD Interpretive Memorandum 

(previously referred to as the ‘‘Johnson 

Memorandum’’), which describes the 

circumstances under which EPA 

considers a pollutant subject to PSD 

requirements. See memorandum (in 

docket for this rulemaking) from 

Administrator Stephen L. Johnson to 

Regional Administrators, ‘‘EPA’s 

Interpretation of Regulations that 

Determine Pollutants Covered by 

Federal Prevention of Significant 

Deterioration (PSD) Permit Program,’’ 

December 18, 2008. The PSD 


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8EPA included this policy interpretation that title 

V addresses 100-tpy sources of ‘‘pollutants subject 

to regulation’’ in a memorandum from Lydia 

Wegman. Memorandum from Lydia N. Wegman, 

Deputy Director, Office of Air Quality Planning and 

Standards, U.S. EPA, ‘‘Definition of Regulated Air 

Pollutant for Purposes of Title V’’ (Apr. 26, 1993). 

EPA continues to maintain this interpretation. The 

interpretation in this memorandum was based on: 

(1) EPA’s reading of the definitional chain for major 

source under title V, including the definition of ‘‘air 

pollutant’’ under section 302(g) and the definition 

of ‘‘major source’’ under 302(j); (2) the view that 

Congress did not intend to require a variety of 

sources to obtain title V permits if they are not 

otherwise regulated under the Act, (see also CAA 

section 504(a), providing that title V permits are to 

include and assure compliance with applicable 

requirements under the Act); and (3) promoting 

consistency with the approach under the PSD 

program. While the specific narrow interpretation 

in the Wegman Memorandum of the definition of 

‘‘air pollutant’’ in CAA section 302(g) is in question 

in light of the Massachusetts v. EPA decision 

(finding this definition to be ‘‘sweeping’’), EPA 

believes the core rationale for its interpretation of 

the applicability of title V remains sound. EPA 

continues to maintain its interpretation, consistent 

with CAA sections 302(j), 501, 502 and 504(a), that 

title V applies to 100 tpy sources of pollutants 

subject to regulation. This interpretation is based 

primarily on the purpose of title V to include all 

regulatory requirements applicable to the source in 

one document to assure compliance, see, e.g., CAA 

section 504(a), and to promote consistency with the 

approach under the PSD program. 

Interpretive Memorandum followed a 

decision by the Environmental Appeals 

Board (EAB) in In re Deseret Power 

Electric Cooperative, on November 13, 

2008. PSD Appeal No. 07–03 (EAB 

2008) (In re Deseret). There, the Board 

remanded a PSD permit that EPA 

Region VIII issued on August 30, 2007, 

to Deseret Power Electric Cooperative, 

authorizing the latter to construct a new 

waste-coal-fired electric generating unit 

near its existing Bonanza Power Plant, 

in Bonanza, Utah. The primary issue 

before the Board was whether the 

permit had to include BACT limits for 

CO2, which depended on whether CO2

meets the definition of a ‘‘regulated NSR 

pollutant’’ under 40 CFR 52.21(b)(50), 

which in turn interprets the provisions 

in CAA sections 165 and 169 that apply 

the BACT requirement to ‘‘each 

pollutant subject to regulation’’ under 

the CAA. The Board rejected arguments 

by the petitioner, the Sierra Club, that 

the CAA compelled a broad 

interpretation of the phrase ‘‘subject to 

regulation,’’ which, according to the 

petitioner, required EPA to apply BACT 

to pollutants as long as they are subject 

to monitoring and reporting 

requirements. Currently, and since 

1993, sources covered by the Acid Rain 

program have been required to monitor 

and report CO2 emissions pursuant to 

the CAA. The Board also rejected the 

view advanced by the EPA offices 

involved in the case—Region VIII and 

the Office of Air and Radiation—that 

EPA had already established an 

interpretation of ‘‘subject to regulation,’’ 

which was that this term authorized 

BACT only for pollutants subject to 

actual regulatory controls. Thus, the 

Board remanded the permit to the 

Region to ‘‘reconsider whether or not to 

impose a CO2 BACT limit in light of the 

‘subject to regulation’ definition under 

the CAA.’’ In re Deseret, slip op. at 63. 

On December 18, 2008, EPA’s thenAdministrator Stephen Johnson issued a 

memorandum establishing an 

interpretation clarifying the scope of the 

PSD program under the CAA (the PSD 

Interpretive Memorandum). This 

memorandum interprets the definition 

of ‘‘regulated NSR pollutant’’ to include 

each pollutant subject to either a 

provision in the CAA or regulation 

adopted by EPA under the CAA that 

requires actual control of emissions of 

that pollutant, and to exclude pollutants 

for which EPA regulations only require 

monitoring or reporting. 

On February 17, 2009, EPA 

Administrator Lisa Jackson responded 

to an amended petition for 

reconsideration dated January 6, 2009, 

filed on behalf of the Sierra Club and 

other parties (petitioners), seeking 

reconsideration of the PSD Interpretive 

Memorandum. In Administrator 

Jackson’s response, she granted the 

petition for reconsideration in order to 

allow for public comment on issues 

raised in the memorandum and stated 

that EPA will also seek public comment 

on any issues raised by the opinion of 

the EAB with regard to the In re Deseret 

decision (as discussed in the PSD 

Interpretive Memorandum), to the 

extent they are not coextensive with the 

issues raised in the memorandum. 

However, Administrator Jackson made 

clear that the current interpretations in 

the PSD Interpretive Memorandum 

remain in effect during the 

reconsideration process. 

Because the PSD Interpretive 

Memorandum concerns PSD 

applicability, its reconsideration will 

identify the circumstances under which 

GHG emissions are treated as ‘‘subject to 

regulation under the CAA’’ and, 

therefore, are ‘‘regulated NSR 

pollutants.’’ Once GHG emissions are 

considered ‘‘regulated NSR pollutants,’’ 

PSD program requirements for existing 

thresholds (100/250 tpy) are triggered. 

The PSD Interpretive Memorandum 

reconsideration is being addressed in a 

proposed rule published in the Federal 

Register on October 7, 2009 (74 FR 

51535). Although several possible 

triggering events may be considered in 

that action, the latest of these events 

would be the one that applies under 

EPA’s current interpretation: A 

nationwide rule controlling or limiting 

GHG emissions. Presently, the EPA 

expects that the first such rule will be 

the light-duty motor vehicle rule. 

b. Light-Duty Vehicle Rule 

EPA is currently developing a rule to 

regulate GHGs from mobile sources 

under title II of the CAA (74 FR 24007; 

May 22, 2009). EPA expects to 

promulgate this rule by the end of 

March 2010. As described in the PSD 

Interpretive Memorandum, it is EPA’s 

position that new pollutants become 

subject to PSD and title V when a rule 

controlling those pollutants is 

promulgated (and even before that rule 

takes effect). Accordingly, as soon as 

GHGs become regulated under the lightduty motor vehicle rule, GHG emissions 

will be considered pollutants ‘‘subject to 

regulation’’ under the CAA and will 

become subject to PSD and title V 

requirements. 

3. Current Applicability of Title V 

Program to GHGs 

CAA section 502(a) and related 

definitions under sections 302 and 501, 

require that specified types of sources 

have operating permits. These include 

any source that emits or has a potential 

to emit 100 tpy of a pollutant subject to 

regulation (consistent with EPA’s policy 

interpretation) 8, any source with a NSR 

or PSD permit, any major source of a 

hazardous air pollutant (HAP), any 

source subject to acid rain requirements, 

and certain minor sources subject to 

section 111 or section 112 standards. As 

with the PSD program, currently GHGs 

are not considered to be subject to 

regulation and have not been considered 

to trigger title V applicability. 

V. What would be the administrative 

burdens of implementing PSD and title 

V at the current permitting thresholds? 

This section of the preamble describes 

the additional administrative burdens 

for the PSD and title V programs in 

terms of staffing needs, time for 

processing permits, and costs that 

permitting authorities would incur if 

sources of GHG emissions were to 

trigger PSD and title V at the statutory 

thresholds, which we shorthand as the 

100/250-tpy thresholds. Evidence we 

have collected to this point makes it 

clear that if PSD and title V applicability 

requirements are triggered at those 

threshold levels, an enormous influx of 

permits would occur—tens of thousands 

of PSD permits and millions of title V 

permits—which would create enormous 

administrative burdens for permitting 

authorities that would far exceed their 

current capacity to administer the PSD 

and title V programs. It is also worth 

noting here that, under a scenario where 


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9 In light of time and resource constraints, we did 

not calculate the additional administrative burden 

and cost of including in the PSD program sources 

that emit between 100 tpy and 250 tpy and that are 

among the 28 source categories identified in CAA 

section 169(l). Including these sources in the 

calculation would increase the administrative 

burdens and costs of implementing PSD at the 

statutory thresholds. 

10 ‘‘Summary of ICR-based Data Used to Estimate 

Avoided Burden and Evaluate Resource 

Requirements at Alternative GHG Permitting 

Thresholds;’’ Prepared by EPA Staff; August 2009. 

11 ‘‘NACAA Summary on Permitting GHGs Under 

the Clean Air Act’’; Memorandum from Mary 

Stewart Douglas, National Association of Clean Air 

Agencies to Juan Santiago, EPA/OAQPS, September 

3, 2009. 

State or local permitting authorities do 

not have the resources to implement the 

title V or PSD programs for GHG sources 

at current CAA permitting applicability 

thresholds, EPA may withdraw its 

approval, in which case, EPA would 

become the permitting authority and the 

enormous resource requirements would 

shift to EPA to implement these 

programs. 

A. PSD Implications 

We evaluated the additional 

administrative burden and cost of 

including GHG emitters in the PSD 

program at the current 250-tpy major 

source permitting threshold (but not at 

100 tpy 9). To calculate the 

administrative burdens and cost, we 

first estimated the number of new 

sources and modifications that would be 

subject to PSD if GHGs were included 

at the 250-tpy threshold level. We 

developed these estimates of number of 

new sources and modifications as part 

of our GHG threshold data analyses. For 

more information on these analyses, see 

the technical support documents 

entitled ‘‘Technical Support Document 

for Greenhouse Gas Emissions 

Thresholds Evaluation’’ and 

‘‘Methodology for Estimating Modified 

Sources That Would Be Subject to PSD 

Permitting for GHGs;’’ Prepared by EPA 

Staff; August 2009 in the docket for this 

rulemaking. 

After estimating the number of 

affected facilities and sources, we then 

evaluated the additional administrative 

burden and cost of including these 

numbers of new and modified GHG 

emitters in the PSD program. Our 

burden estimates are based on labor and 

cost information from the existing 

Information Collection Requests (ICRs) 

for PSD programs.10

Based on our GHG threshold data 

analysis, we estimate that almost 41,000 

new and modified facilities per year 

would be subject to PSD review, based 

on the current rate of modifications at 

major sources, if a GHG major source 

threshold of 250 tpy CO2e were applied. 

Compared to the 280 PSD permits 

currently issued per year, this would be 

an increase in permits of more than 140- 

fold. 

We estimated the number of workload 

hours and cost a permitting authority 

would expend on each new source and 

each modification. We based these 

estimates on the workload hours and 

cost for processing permits for new 

sources of non-GHG emissions, which 

we derived from labor and cost 

information from the existing ICRs for 

PSD programs. The ICRs show that 

permitting authorities expend 301 hours 

to permit a new or modified industrial 

source. For more detail on information 

used from the PSD ICR for this 

evaluation, please refer to the docket for 

this rulemaking. 

We then made assumptions for 

number of workload hours and costs for 

new sources of GHG emissions. We 

assumed that permitting new industrial 

GHG sources that emit in excess of the 

250-tpy threshold would be of 

comparable complexity to permitting 

non-GHG emitting industrial sources 

that are subject to PSD. Thus, for these 

sources, we assumed that permitting 

authorities would expend the same 

number of workload hours and costs, on 

a per-permit basis, as they do for nonGHG emitting industrial sources. On the 

other hand, for commercial and 

residential GHG sources that emit GHGs 

above the 250-tpy threshold (and as a 

result would be subject to the 

requirements of the PSD permitting 

program at this threshold level), we 

assumed that the workload hours and 

cost for permitting these sources would 

be significantly less than—only 20 

percent of—the hours and cost 

necessary to prepare and issue initial 

PSD permits or permit modifications for 

industrial GHG sources. This 20-percent 

estimate amounts to 60 hours of 

permitting authority time per residential 

or commercial permit. 

Based on these assumptions, the 

additional annual permitting burden for 

permitting authorities, on a national 

basis, is estimated to be 3.3 million 

hours at a cost of $257 million to 

include all GHG emitters above the 250- 

tpy threshold. 

In addition to conducting our burden 

analysis, we also reviewed summary 

information from State and local air 

permitting agencies regarding additional 

resources and burden considerations if 

GHG sources that emit above the 100/ 

250-tpy thresholds were subjected to the 

PSD and title V programs. This 

information covered 43 State and local 

permitting agencies, representing 

programs from different regions of the 

country and various permitting program 

sizes (in terms of geographic and source 

population coverage). A summary of 

this information can be found in the 

docket for this rulemaking.11 This 

information showed significant burdens 

projected by permitting agencies with 

adding sources of GHG emissions in 

terms of staffing, budget, and other 

associated resource needs. Importantly, 

the agencies based their analysis on the 

assumption that, for purposes of 

determining whether a source is major, 

its emissions would be calculated on an 

actual emissions (‘‘actuals’’) basis, and 

not on a PTE basis. On an actuals basis, 

the agencies estimated a 10-fold 

increase in the number of permits. 

Specifically, the agencies estimated 

that: 

• Assuming, again, that number of 

permits was to increase by 10-fold 

(based on actual emissions), the 

resulting workload would require an 

average of 12 more FTEs per permitting 

authority at an estimated cost of $1 

million/year; 

• Without the additional FTEs, the 

average processing time for a permit 

would increase to 3 years, which is 

three times the current average 

processing time; 

• Permitting authorities would need 2 

years on average to add the necessary 

staff; 

• Permitting authorities would also 

need, on average, eight additional 

enforcement and judicial FTEs; 

• Ninety percent of the permitting 

agencies indicated that their staff would 

need training in all aspects of permitting 

for sources of GHG emissions; and 

• A quarter of the permitting agencies 

reported that they were currently under 

a hiring freeze. 

It is important to reiterate that the 

State and local permitting information 

on burden was based on the number of 

additional facilities subject to PSD 

because their emissions of GHGs exceed 

the 100/250-tpy thresholds at actual 

emissions rates, not PTE-based 

emissions rates. However, the PSD 

applicability requirements are based on 

PTE. By adjusting the increase in 

number of permits to account for GHG 

sources that exceed the 100/250-tpy 

applicability thresholds based on their 

PTE emissions, EPA estimated a 140- 

fold increase in numbers of PSD 

permits, much more than the 10-fold 

increase estimated by the States based 

on actual emissions. 

The GHG threshold analyses used to 

identify the number of facilities that 

would be affected at current PSD 

permitting thresholds, and which is also 

used later in Section VIII for evaluating 


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alternative thresholds, are based on the 

PTE of GHG sources. PTE is defined as 

the maximum capacity of a stationary 

source to emit a pollutant under its 

physical and operational design, 

including certain legal limitations, for 

example, on emissions or hours of 

operation. PSD and title V programs 

both use PTE for defining major sources. 

Our threshold analyses begin with 

actual emissions estimates, but we then 

adjust the numbers upward to account 

for potential-to-emit. PTE adjustments 

for industrial sources are generally 

based on industry-specific capacity 

utilization factors, while those used for 

commercial and residential sources are 

based on general sector-based 

information on heating equipment and 

appliance usage in these sectors. While 

these PTE adjustments are important for 

estimating affected facilities in all 

sectors, they are a particularly relevant 

concern for determining the number of 

facilities in the commercial and 

residential sector that may be affected, 

where CO2 emissions are primarily due 

to space heating/appliance usage and 

combustion units are likely to be used 

at levels well below constant operation 

at maximum capacity. For example, our 

PTE adjustment for commercial and 

residential sources resulted in an 

upwards adjustment ranging from 85 to 

90 percent in emissions from their 

actual emission values. The basis for our 

PTE adjustments is described in the 

‘‘Technical Support Document for 

Greenhouse Gas Emissions Thresholds 

Evaluation’’ found in the docket for this 

proposal. We ask for specific comment 

on the reasonableness of these PTE 

adjustments as they apply to the 

different sectors and source categories, 

in particular, the commercial and 

residential sectors where there is 

limited information available on 

equipment capacity utilization. 

There are multiple sources of 

uncertainty in our approaches for 

estimating emissions, and thus for 

estimating numbers of sources. For 

example, the PTE adjustment factors 

just described may overstate or 

understate the maximum emissions 

from sources particularly for the 

commercial and residential sectors. In 

addition, there are inherent 

uncertainties in developing source 

counts from nationally aggregated 

statistics, as was done for the estimates 

for commercial and residential sources 

which rely on the allocation of national 

level statistics for energy consumption. 

The allocation factors we used, based on 

U.S. Energy Information Administration 

statistical sampling procedures, are 

likely the best available to estimate the 

population of residential and 

commercial sources exceeding different 

GHG thresholds. Again, these 

uncertainties may result in either 

overestimates or underestimates. The 

uncertainty is less for industrial 

categories, where we generally utilized 

facility-based methodologies, but 

because it was necessary to use varying 

methodologies for different source 

types, as described in the Technical 

Support Document, the uncertainties 

will not be uniform across all categories. 

We request comment on all aspects of 

our threshold analysis, possible sources 

of error, suggestions for reducing 

uncertainties, and alternate approaches 

to estimating emissions from 

commercial and residential sources. 

B. Title V Implications 

The triggering of title V requirements 

for GHG would result in administrative 

burdens that stem from sources’ 

obligation to apply for permits. These 

obligations apply differently depending 

on whether the source already has a title 

V permit. Most significant are the more 

than six million sources of GHGs that 

would become newly subject to title V 

requirements because they exceed the 

100-tpy threshold for GHG but did not 

for previously regulated pollutants. 

Although there are generally not 

applicable requirements for GHGs that 

apply to such sources, these six million 

sources would be required to submit a 

title V permit application within 1 year. 

Permitting authorities would need to 

issue these permits within 18 months of 

receipt of a complete application, and 

these permits would need to include 

any requirements for non-GHGs that 

may apply to the source, such as 

provisions of an applicable SIP. For any 

such requirements, permitting 

authorities would also need to develop 

terms addressing the various 

compliance assurance requirements of 

title V, including monitoring, deviation 

reporting, six-month monitoring reports, 

and annual compliance certifications. 

Adding to the burden described above 

would be the burden to add GHG terms 

to the 14,700 existing title V permits. 

While, in general, existing title V 

permits would not immediately need to 

be revised or reopened to incorporate 

GHG (because as noted above, there are 

generally not applicable requirements 

for GHGs that apply to such sources), 

permitting authorities may face burdens 

to update existing title V permits for 

GHG under two possible scenarios: (1) 

EPA promulgates or approves any 

applicable requirements for GHGs that 

would apply to such a source, which 

would generally require a permit 

reopening or renewal application, or (2) 

the source makes a change that would 

result in an applicable requirement for 

GHGs to newly apply to the source, 

such as PSD review, which would 

generally require an application for a 

permit revision. Permitting authorities 

will also need to process permit renewal 

applications, generally on a 5-year 

cycle, and such renewals would need to 

assure that the permit properly 

addresses GHG. Finally they would 

have to process title V applications for 

new sources (including all the PSD 

sources previously discussed). 

Obviously, this massive influx of 

permit applications would overwhelm 

permitting authorities’ administrative 

resources. Indeed, permitting authorities 

report that they currently are having 

difficulty keeping up with their existing 

permit workloads. The Title V 

Operating Permits System database, 

which tracks permit issuance, confirms 

that issuance of many permits is already 

delayed. By increasing the volume of 

permits by over 400 times, the 

administrative burden would be 

unmanageable. 

As with PSD, we have quantified the 

extent of the administrative problem 

that would result in workload hours and 

cost on the basis of information 

concerning hours and costs for 

processing existing title V permits that 

is indicated on ICRs. However, we 

recognize that more than 97 percent of 

these new sources would be commercial 

and residential sources. We estimate 

that for permitting authorities, the 

average new commercial or residential 

permit would require 43 hours to 

process, which is 10 percent of the time 

needed for the average new industrial 

permit. For an average existing permit, 

which permitting authorities would 

need to process through procedures for 

significant revisions and permit 

renewals, adding GHG emissions to the 

permit would result in, we estimate, 9 

additional hours of processing time, 

which is 10 percent of the amount of 

time currently necessary for processing 

existing permits. We estimate that the 

total nationwide additional burden for 

permitting authorities for title V permits 

from adding GHG emissions at the 100- 

tpy threshold would be 340 million 

hours, which would cost over $15 

billion. 

As noted in this preamble’s 

discussion of PSD burdens, we also 

reviewed summary information from 

State and local permitting agencies, 

which showed significant burdens 

associated with adding GHGs in their 

title V programs in terms of staffing, 

budget, and other associated resource 


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12 ‘‘NACAA Summary on Permitting GHGs Under 

the Clean Air Act’’; Memorandum from Mary 

Stewart Douglas, National Association of Clean Air 

Agencies to Juan Santiago, EPA/OAQPS, September 

3, 2009. 

13 ‘‘A Regulatory Burden: The Compliance 

Dimension of Regulating CO2 as a Pollutant’’; 

Prepared for the U.S. Chamber of Commerce; 

September 2008. See Docket ID No. EPA–HQ–OAR– 

2008–0318–0402.1. 

needs.12 Again, note that the permitting 

agencies based their estimates on 

numbers of permits that would be 

required from sources subject to the 

100-tpy title V applicability threshold 

on an actuals–not PTE–basis. Based on 

that level, the agencies assumed a 40- 

fold increase in numbers of permits, and 

estimated that: 

• The resulting workload would 

require an average of 57 more FTEs per 

permitting agency at an estimated cost 

of $4.6 million/year; 

• Without the additional FTEs, the 

average processing time for a permit 

would increase to almost 10 years, 

which is 20 times the current average 

permit processing time; 

• Permitting authorities would need 2 

years on average to add the necessary 

staff; 

• On average, permitting authorities 

would need 29 additional enforcement 

and judicial staff; 

• Eighty percent of the permitting 

authorities indicated that their staff 

would need training in all aspects of 

permitting for sources of GHG 

emissions; and 

• A quarter of the permitting 

authorities reported that they were 

currently under a hiring freeze. 

It is important to reiterate that, as 

with PSD, the State and local 

information on projected permitting 

burden is based on the number of 

additional facilities subject to title V 

because their emissions of GHGs exceed 

the 100-tpy thresholds at actual 

emissions rates, not the PTE-based 

emissions rates. However, the title V 

applicability requirements are based on 

PTE. As noted elsewhere in this 

preamble, the State and local agencies 

estimated a 40-fold increase in numbers 

of title V permits based on the amount 

of GHG sources’ actual emissions. By 

adjusting the summary estimates 

provided by the State and local agencies 

to account for GHG sources that exceed 

the 100-tpy threshold based on their 

PTE emissions, EPA estimated that the 

average permitting authority would 

need 570 more FTEs to support its title 

V permitting program. 

C. ANPR Comments 

We examined the ANPR comments 

received for further information on the 

additional administrative burdens that 

permitting programs would carry if PSD 

requirements for sources of GHG 

emissions were triggered at the current 

100/250-tpy thresholds and title V 

requirements were triggered at the 

current 100-tpy threshold. Most 

industry stakeholders who commented 

on the ANPR believe that triggering title 

V and PSD applicability for GHG 

emissions sources would be disastrous 

and that a regulatory gridlock would 

ensue. Many of these industry 

commenters agreed with the U.S. 

Chamber of Commerce’s study 13 which 

found that regulating GHGs under the 

CAA would cause 1,000,000 commercial 

buildings, nearly 200,000 manufacturing 

operations, and about 20,000 large farms 

to become CAA-regulated stationary 

sources. In fact, most of the industry 

commenters believed that these 

estimates underestimated the impacts. 

Commenters expressed that the 

implications of all these sources 

becoming CAA-regulated stationary 

sources would cause a large permitting 

backlog, as States do not have the staff 

or training to take on such a large 

burden. In addition, commenters 

stressed that many of these sources have 

never needed an air permit before and 

would have to obtain basic knowledge 

of the permitting regulations and how to 

comply with them, which would also 

impose more burdens on the permitting 

authorities. Many of the new sources 

would be small emitters not previously 

regulated under the CAA. 

VI. What is the legal rationale for this 

proposed action? 

This section of the preamble discusses 

the legal rationale for phasing in the 

applicability thresholds for PSD and 

title V purposes as proposed, which are 

two doctrines that courts have relied on 

in interpreting and applying statutory 

requirements: The ‘‘absurd results’’ 

doctrine and the ‘‘administrative 

necessity’’ doctrine. These doctrines are 

related, apply in this case because of the 

same factual circumstances, and justify 

the same application—that is, the 

phased approach—of the PSD and title 

V applicability provisions. But they are 

independent justifications, and 

therefore will be discussed 

independently. 

A. ‘‘Absurd Results’’ Doctrine 

This proposed action establishing the 

first phase of the PSD and title V 

applicability thresholds, in lieu of 

applying the statutory 100/250 tpy 

thresholds literally for GHG sources, is 

supported by a judicial doctrine that 

may be termed the ‘‘absurd results’’ 

doctrine. Applying the threshold 

provisions literally for the period 

immediately after PSD and title V are 

triggered for GHG emissions would lead 

to results that contravene congressional 

intent and, in fact, undermine 

Congress’s purposes for both permitting 

programs. 

1. Overview 

As discussed in detail below, the 

courts are reluctant to invoke this 

doctrine precisely because it entails 

departing from the literal application of 

statutory provisions, but they 

nevertheless do so when the literal 

application produces results that are 

inconsistent with other statutory 

provisions, run contrary to expressed 

congressional intent or actually 

undermine congressional intent, or are 

otherwise so illogical or contrary to 

sensible policy as to be beyond anything 

that Congress could reasonably have 

intended. This is one of the rare cases 

in which the doctrine applies because 

the extraordinary increases in PSD and 

title V permit applications that would 

result from a literal application of the 

100/250 tpy threshold requirements 

would, at least during the near term— 

until EPA and the permitting authorities 

can develop streamlining methods and 

ramp up resources—extensively disrupt 

the two permitting programs and 

impose undue regulatory burdens in the 

aggregate on the sources newly subject 

to PSD and title V permit requirements. 

These results would create tensions 

with other explicit requirements of the 

PSD and title V provisions, run contrary 

to expressed congressional intent for the 

PSD and title V provisions, and, in fact, 

severely undermine both programs. 

The applicability of the absurd results 

legal doctrine to this proposal should be 

reviewed with EPA’s proposed action in 

mind: EPA proposes to establish a 

process for implementing the PSD and 

title V applicability requirements, 

including a first phase that would 

consist of establishing the specified 

thresholds and vigorously developing 

streamlining methods; then, after 5 

years, preparing an assessment; and 

then, by the sixth year, promulgating a 

rulemaking for further action. In 

addition, during this first phase, we 

expect the permitting authorities to 

ramp up resources for permit issuance. 

With respect to PSD, a literal 

application of the applicability 

thresholds in CAA sections 165(a)(1) 

and 169(2)(C) of 100 or 250 tpy for GHG 

emitters would create significant 

tensions with two other PSD provisions 

during at least the first phase in period 

after the triggering of PSD applicability 

by the light-duty vehicle rule, and 

before the development of streamlining 


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methods and the addition of permitting 

resources. First, a literal application 

would render it impossible for 

permitting authorities to meet the 

requirement in CAA section 165(c) to 

process permit applications within 12 

months. During this initial period, the 

number of permit applications would 

increase by 150-fold, an unprecedented 

increase that would far exceed 

administrative resources. Permitting 

authorities have estimated that it would 

take 10 years to process a PSD permit 

application, on average, and the 

resulting backlog would affect the 

permit applications for all sources, not 

just the GHG emitters. 

This backlog would grow by tens of 

thousands each year following the 

triggering of PSD applicability—again, 

for at least the first few years—and 

thereby undermine a second express 

PSD provision, section 160(3). This 

provision describes, as one of the 

purposes of the PSD program, ‘‘to insure 

that economic growth will occur in a 

manner consistent with the preservation 

of existing clean air resources.’’ Because 

the PSD requirements apply on a 

preconstruction basis—that is, they 

require permits before sources may 

construct or modify—tens of thousands 

of sources seeking to construct or 

modify during at least the first few years 

after the triggering of PSD would instead 

face many years of delay. This delay 

would impede economic growth by 

precluding any type of source—whether 

it emits GHGs or not—from constructing 

or modifying for years after its business 

plan contemplates. 

In addition, a literal application of the 

100/250 tpy threshold in the PSD 

provisions during at least the first few 

years after PSD is triggered for GHG 

emitters would be contrary to, and in 

fact would undermine, expressed 

congressional intent in several 

important ways: As just noted, it would 

undermine congressional intent to 

authorize economic growth, albeit with 

environmental safeguards. In addition, 

the PSD requirements entail significant 

regulatory costs to affected sources 

because the sources must identify and 

implement BACT on a source-specific 

basis. The legislative history of the PSD 

provisions makes clear that Congress 

intended the PSD program to apply only 

to larger sources, and not to smaller 

sources, in light of the larger sources’ 

relatively greater ability to bear the costs 

of PSD and their greater responsibility 

for the pollution problems. In enacting 

the PSD requirements during the 1977 

Clean Air Act Amendments, Congress, 

focused as it was on sources of 

conventional pollutants and not global 

warming pollutants, expected that the 

100/250 tpy applicability thresholds 

would limit PSD to larger sources. But 

because very small sources emit CO2 in 

quantities as low as 100/250 tpy, a 

literal application of the threshold to 

GHG emitters, without streamlining, 

would sweep in large numbers of small 

sources and subject them to the high 

costs of determining and meeting 

individualized BACT requirements, 

while also overwhelming permitting 

authorities’ capacity to process those 

applications. Thus, a literal application 

of the 100/250 tpy thresholds would 

sweep into the PSD program tens of 

thousands of smaller sources that 

Congress did not intend to include, and 

the resulting strain on administrative 

resources would preclude the hundreds 

of larger sources that Congress did 

intend to be subject to the program from 

obtaining permits at least for an initial 

period. In time, the development of 

streamlining methods and the ramping 

up of administrative resources would 

bridge the gap between the literal 

language and congressional intent, and 

make it possible to expand the PSD 

program in a sensible manner that 

would make sense from the standpoint 

of the sources and the permitting 

authorities. But at least for the initial 

period, these circumstances qualify as 

‘‘absurd results’’ that merit avoiding a 

literal application of the threshold 

provision. 

We reach similar conclusions for title 

V. A literal application of the 

applicability threshold in CAA sections 

502(a), 501(2)(B), and 302(j) of 100 tpy 

for GHG sources would bring some 6.1 

million sources into the title V program. 

For at least the first few years after title 

V is triggered, until streamlining 

methods are developed and 

administrative resources are ramped up, 

this would create significant tensions 

with other title V provisions. The 

extraordinary number of permit 

applications would render it impossible 

for permitting authorities to meet the 

requirements of section 503(c) to 

process title V permit applications 

within 18 months. Further, this number 

of permit applications would severely 

disrupt implementation of the rest of the 

carefully calibrated set of statutory 

requirements that Congress set out in 

title V. These requirements set out 

specific—and brief—time frames for 

EPA review and for public participation, 

and they simply could not be complied 

with at least initially for this number of 

permit applications. 

A literal application of the 100 tpy 

threshold would also be inconsistent 

with express congressional intent 

concerning title V. The statutory 

provisions by their terms, supported by 

the legislative history, indicate that 

Congress designed the title V program to 

promote compliance by compiling into 

a single document all of the 

requirements applicable to the source 

under the Act. The legislative history 

indicates that some in Congress 

expected the title V permit program to 

approximate the size of the Federal 

water permit program. However, 

applying the 100 tpy threshold for GHG 

emitters would lead to permit 

applications in numbers—some 6.1 

million—that are almost 100 times 

greater than what Congress expected. 

The large permit backlog and inevitable 

multi-year delays in permit issuance 

that would ensue would thwart 

Congress’s purposes in enacting title V 

to promote compliance with CAA 

requirements. As with PSD, this 

disruption would affect all sources 

covered by the provisions, whether or 

not they emit GHGs. 

Moreover, the great majority of the 6.1 

million additional permittees would not 

be subject to any CAA requirements 

and, as a result, would be issued 

permits that do not include any 

applicable requirements. Because 

Congress designed title V to require 

permits to address applicable 

requirements, and because Congress 

envisioned a much smaller program, 

immediately sweeping these sources 

into the program is contrary to 

congressional intent. Yet, their 

inclusion in the program would 

overwhelm administrative resources for 

at least an initial period, until 

streamlining methods are developed, 

and preclude the timely issuance and 

reissuance of permits to sources that 

Congress clearly contemplated should 

be included in the program. Thus, a 

literal application of the title V 

threshold provisions would bring in 

millions of sources that Congress did 

not intend to cover, and thereby 

interfere with the administration of the 

program for the thousands of sources 

that Congress did intend to cover. As 

with PSD, in time, the development of 

streamlining methods and the ramping 

up of administrative resources would 

bridge the gap between the literal 

language and congressional intent, and 

make it possible to include more of 

these sources in the title V program in 

a manner that makes sense for both the 

permittees and the permitters. But for 

the initial period, as with PSD, these 

circumstances qualify as ‘‘absurd 

results’’ that merit avoiding a literal 

application of the threshold provisions. 

In the cases that apply the ‘‘absurd 

results’’ doctrine, the courts go on to 

apply the statutory provisions in 

question in a manner that—while not in 


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accordance with their literal reading— 

effectuates congressional intent as much 

as possible. We believe that the process 

we propose in this notice, which 

includes a first phase that establishes 

thresholds at the specified levels while 

allowing time to develop streamlining 

approaches and ramp up resources, 

followed by a study and further 

rulemaking, is consistent with this 

caselaw. 

2. Tailoring Approach 

In discussing the absurd results 

caselaw and its applicability in this 

case, it is important to keep in mind 

EPA’s proposed action. As discussed in 

detail elsewhere in this notice, EPA 

proposes a phased plan designed to 

achieve full compliance with the PSD 

and title V threshold requirements. The 

first phase entails the establishment of 

applicability thresholds at the 25,000 

tpy CO2e levels, and significance levels 

at between 10,000 and 25,000 tpy CO2e. 

In addition, the first phase entails 

development of streamlining methods— 

including potential revisions to the 

definition of potential to emit, general 

permits, and presumptive BACT—that 

allow us to craft the application of PSD 

and title V in ways that are achievable 

and effectively balance the burdens on 

both the permitting authorities and the 

regulated community with the 

reductions achievable. The first phase 

also includes the collection of 

information and further assessments in 

a report, to be completed within 5 years, 

and culminates in a rulemaking to be 

promulgated by the sixth year that will 

establish further action. 

3. PSD and Title V Threshold Provisions 

Several PSD and title V provisions are 

relevant for present purposes because of 

the specific requirements that they 

establish and the window that they 

provide into congressional intent. These 

provisions start with the PSD and title 

V applicability provisions. For PSD 

purposes, the key applicability 

provisions are found in CAA sections 

165(a) and 169(1), which identify the 

new sources subject to PSD, and CAA 

§ 111(a)(4), which describes the 

modifications of existing sources that 

are subject to PSD. CAA section 165(a), 

42 U.S.C. 7475, provides: 

No major emitting facility on which 

construction is commenced after August 7, 

1977, may be constructed in any area to 

which this part applies unless— 

(1) A permit has been issued for such 

proposed facility in accordance with this part 

setting forth emission limitations for such 

facility which conform to the requirements of 

this part; 

(2) The proposed permit has been subject 

to a review in accordance with this section 

* * *, and a public hearing has been held 

with opportunity for interested persons 

including representatives of the 

Administrator to appear and submit written 

or oral presentations on the air quality 

impact of such source, alternatives thereto, 

control technology requirements, and other 

appropriate considerations; * * * 

(4) The proposed facility is subject to the 

best available control technology for each 

pollutant subject to regulation under this 

chapter emitted from, or which results from, 

such facility * * *. 

The term ‘‘major emitting facility’’ is 

defined, under CAA § 169(1) to include: 

* * * stationary sources of air pollutants 

which emit, or have the potential to emit, one 

hundred tons per year or more of any air 

pollutant from [28 listed] types of stationary 

sources. * * * Such term also includes any 

other source with the potential to emit two 

hundred and fifty tons per year or more of 

any air pollutant. This term shall not include 

new or modified facilities which are 

nonprofit health or education institutions 

which have been exempted by the State. 

The thresholds in CAA section 169(1) 

of 100-tpy for sources in the 28 listed 

categories and 250-tpy for all other 

sources may be referred to as the 100/ 

250-tpy thresholds. 

As for modification of existing 

sources, CAA section 169(1)(C) provides 

that the term ‘‘construction,’’ as used in 

CAA section 165(a) (the PSD 

applicability section) ‘‘includes the 

modification (as defined in section 

111(a)(4)) of any source or facility.’’ 

Section 111(a)(4), in turn, provides: 

The term ‘‘modification’’ means any 

physical change in, or change in the 

method of operation of, a stationary 

source which increases the amount of 

any air pollutant emitted by such source 

or which results in the emission of any 

air pollutant not previously emitted. 

As interpreted by EPA regulations, 

these provisions, taken together, provide 

that new stationary sources are subject 

to PSD if they emit at the 100/250-tpy 

thresholds air pollutants that are subject 

to EPA regulation, and that existing 

stationary sources that emit such air 

pollutants at the 100/250-tpy thresholds 

are subject to PSD if they undertake a 

physical or operational change that 

increases their emissions of such air 

pollutants by any amount. 

For title V purposes, the key 

applicability provisions are found in 

CAA sections 502(a), 501(2)(B), and 

302(j). These provisions provide that it 

is unlawful for any person to operate a 

‘‘major source’’ without a title V permit, 

section 502(a), and define a ‘‘major 

source’’ as ‘‘any major stationary facility 

or source of air pollutants which 

directly emits, or has the potential to 

emit, one hundred tons per year or more 

of any air pollutant.’’ CAA section 

501(2)(B) and section 302(j). As noted 

elsewhere, these provisions, taken 

together and as interpreted by EPA, 

provide that stationary sources are 

subject to title V if they emit at the 100- 

tpy threshold air pollutants that are 

subject to EPA regulation. 

Other provisions of particular 

relevance are the requirements in the 

PSD and title V programs for timely 

issuance of permits. For PSD, the 

permitting authority must ‘‘grant[ ] or 

den[y] [any completed permit 

application] not later than one year after 

the date of filing of such completed 

application.’’ CAA § 165(c). For title V, 

‘‘the permitting authority shall approve 

or disapprove a completed application 

* * * and shall issue or deny the 

permit, within 18 months after the date 

of receipt thereof * * *.’’ CAA section 

503(c). Title V goes on to include 

several provisions designed to support 

this 18-month requirement. First, the 

permitting authority must develop 

‘‘adequate, streamlined, and reasonable 

procedures for expeditiously 

determining when applications are 

complete, for processing such 

applications, for public notice * * * 

and for expeditious review of permit 

actions, including * * * judicial review 

in State court of the final permit action 

by [specified persons].’’ CAA section 

502(b)(6). Second, title V includes a 

‘‘hammer’’ provision designed to 

reinforce timely permit issuance, which 

is that the permitting authority’s 

program must include: 

To ensure against unreasonable delay by 

the permitting authority, adequate authority 

and procedures to provide that a failure of 

such permitting authority to act on a permit 

application or permit renewal application (in 

accordance with the time periods specified in 

[CAA § 503] * * *) shall be treated as a final 

permit action solely for purposes of obtaining 

judicial review in State court of an action 

brought by any person referred to in 

paragraph (6) to require that action be taken 

by the permitting authority on such 

application without additional delay. CAA 

§ 502(b)(7). 

Third, the permit program must include 

‘‘[a]uthority and reasonable procedures 

consistent with the need for expeditious 

action by the permitting authority on 

permit applications and related matters, 

to make available to the public [certain 

permit-related documents]’’. CAA 

section 502(b)(8). 

In addition, PSD includes a set of 

provisions that specifically state ‘‘the 

purposes of [the PSD program],’’ which 

are to balance environmental protection 

and growth. CAA § 160. One of the 

purposes, in subsection (1), is 

specifically ‘‘to protect public health 

and welfare,’’ and another, in subsection 


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14 Judge Learned Hand’s formulation of the 

doctrine is often quoted in the caselaw: 

Of course, it is true that the words used, even in 

their literal sense, are the primary and ordinarily 

the most reliable, source of interpreting the 

meaning of any writing. * * * But it is one of the 

surest indexes of a mature and developed 

jurisprudence not to make a fortress out of the 

dictionary; but to remember that statutes always 

have some purpose or object to accomplish, whose 

sympathetic and imaginative discovery is the surest 

guide to their meaning. 

Cabell v. Markham, 148 F.2d 737, 738 (2d Cir.), 

aff’d 326 U.S. 404 (1945). See Giuseppi v. Walling, 

144 F.2d 608, 624 (2d Cir. 1944) (opinion by Judge 

Hand) (‘‘There is no surer way to misread any 

document than to read it literally’’). 

(3), is ‘‘to insure that economic growth 

will occur in a manner consistent with 

the preservations of existing clean air 

resources.’’ Title V does not have a 

parallel set of provisions describing its 

purpose, but it is clear from its 

provisions and its legislative history, 

discussed below, that its key goal is to 

gather into a single document the Clean 

Air Act requirements applicable to a 

source and impose conditions necessary 

to assure compliance with such 

requirements, and thereby promote the 

enforceability of CAA requirements 

applicable to the covered sources. CAA 

§ 503(b)(1) requires that the source’s 

permit application must assure 

‘‘compl[iance] with all applicable 

requirements’’ of the CAA, and § 504(a) 

requires that ‘‘[e]ach permit issued 

under [title V] shall include * * * such 

* * * conditions as are necessary to 

assure compliance with applicable 

requirements of [the Clean Air Act].’’ 

See H.R. Rep. No. 101–490, at 351 

(1990) (‘‘It should be emphasized that 

the operating permit to be issued under 

this title is intended by the 

Administration to be the single 

document or source of all of the 

requirements under the Act applicable 

to the source.’’). 

In addition, both PSD and title V 

include detailed procedures for 

implementation. The PSD provisions 

most relevant for sources of GHG are 

that the proposed permit for each source 

must be the subject of a public hearing 

with opportunity for interested persons 

to comment, CAA § 165(a)(2), and each 

source must be subject to best available 

control technology, as determined by 

the permitting authority on a source-bysource basis, CAA § 165(a)(4), 169(3). 

Title V includes a comprehensive and 

finely detailed implementation schedule 

that mandates timely issuance of 

permits while building in EPA and 

affected State review, public 

participation, and timely compliance by 

the source with reporting requirements. 

Following the date that sources become 

subject to title V, they have 1 year to 

submit their permit applications. CAA 

§ 503(c). As noted above, the permitting 

authority then has 18 months to issue or 

deny the permit. CAA § 503(c). 

Permitting authorities must provide an 

opportunity for public comment and a 

hearing. CAA § 502(b)(6). If the 

permitting authority proposes to issue 

the permit, the permitting authority 

must submit the permit to EPA, and 

notify affected States, for review. CAA 

§ 505(a)(1). EPA then has 45 days to 

review the permit and, if EPA deems it 

appropriate, to object to the permit. 

CAA § 505(b)(1). If EPA does object, 

then the permitting authority must, 

within 90 days, revise it to meet the 

objections, or else EPA becomes 

required to issue or deny the permit. 

CAA § 505(c). If EPA does not object, 

then, within 60 days of the close of the 

45-day review period, any person may 

petition EPA to object, and EPA must 

grant or deny the petition within 60 

days. CAA § 505(b)(2). If a permit is 

issued, it must include a permit 

compliance plan, under which the 

permittee must ‘‘submit progress reports 

to the permitting authority no less 

frequently than every 6 months,’’ and 

must ‘‘periodically (but no less 

frequently than annually) certify that 

the facility is in compliance with any 

applicable requirements of the permit, 

and [ ] promptly report any deviations 

from permit requirements to the 

permitting authority.’’ CAA § 503(b). 

4. ‘‘Absurd Results’’ Doctrine 

The familiar Chevron two-step 

analysis provides the starting point for 

EPA’s interpretation of these statutory 

provisions. Under Chevron step 1, an 

agency must determine whether 

Congress’s intent in a particular 

provision on a particular question is 

clear; if so, then the agency must follow 

that intent. If the intent of a provision 

is not clear, then the agency may, under 

step 2, fashion a reasonable 

interpretation of the provision. Chevron 

U.S.A. Inc. v. NRDC, 467 U.S. 837, 842– 

43 (1984). 

Here, the applicability provisions for 

PSD and title V are clear on their face. 

However, the U.S. Supreme Court has 

held that the plain meaning of a 

statutory provision is not conclusive ‘‘in 

the ‘rare cases [in which] the literal 

application of a statute will produce a 

result demonstrably at odds with the 

intentions of the drafters’ * * * [in 

which case] the intention of the drafters, 

rather than the strict language, 

controls.’’ Ron Pair, 489 U.S. at 242 

(citations omitted).14

In describing these cases as ‘‘rare,’’ 

the U.S. Supreme Court seemed to be 

referring to the small percentage of 

statutory-construction cases that are 

decided on the basis of the doctrine. 

The D.C. Circuit, in surveying the 

doctrine over more than a century of 

jurisprudence, characterized the body of 

law in absolute numbers as comprising 

‘‘legions of court decisions.’’ In re 

Franklyn C. Nofziger, 925 F.2d 428, 434 

(D.C. Cir. 1991). The U.S. Supreme 

Court cases include, among others, 

Nixon v. Missouri Municipal League, 

541 U.S. 125, 132–33 (2004) (‘‘any 

entity’’ includes private but not public 

entities); Raygor v. Regents of Univ. of 

Minn., 534 U.S. 533, 542–45 (2002) 

(‘‘implying a narrow interpretation of 

* * * ‘any claim asserted’ so as to 

exclude certain claims dismissed on 

Eleventh Amendment grounds’’); Ron 

Pair, 48 U.S. at 242; Green v. Bock 

Laundry Machine Company, 490 U.S. 

504 (1989) (provision in Federal Rule of 

Evidence that protects ‘‘the defendant’’ 

against potentially prejudicial evidence, 

but not the plaintiff, refers to only 

criminal, and not civil, defendants); 

Train v. Colorado Public Interest 

Research Group, Inc., 426 U.S. 1, 23–24 

(1976) (prohibition in Federal Water 

Pollution Control Act against 

discharging into navigable waters 

‘‘pollutants,’’ which are defined to 

include ‘‘radioactive materials,’’ does 

not apply to three specific types of 

radioactive materials); Lynch v. 

Overholser, 369 U.S. 705, 710, (1962) 

(statutory construction is not confined 

to the ‘‘bare words of a statute’’); Utah 

Junk Co. v. Porter, 328 U.S. 39, 44 

(1946) (‘‘literalness may strangle 

meaning’’); Markham v. Cabell, 326 U.S. 

404, 409 (1945) (‘‘The policy as well as 

the letter of the law is a guide to 

decision.’’); United States v. American 

Trucking Associations, Inc. 310 U.S. 534 

(1940) (the term ‘‘employees’’ in the 

Federal Motor Carrier Act, is limited to 

employees whose activities affect 

safety); C.V. Sorrels v. U.S., 287 U.S. 

435, 446–49 (1932) (provisions of 

National Prohibition Act that 

criminalize possessing and selling 

liquor do not apply if defendant is 

entrapped; Court declines to apply the 

‘‘letter of the statute’’ because doing so 

‘‘in the circumstances under 

consideration is foreign to its purpose’’); 

Holy Trinity Church v. U.S., 143 U.S. 

457, 516–17 (1892) (‘‘any alien’’ does 

not include a foreign pastor; Court 

stated, ‘‘It is a familiar rule, that a thing 

may be within the letter of the statute 

and yet not within the statute, because 

not within its spirit, nor within the 

intention of its makers * * * If a literal 

construction of the words be absurd, the 

Act must be construed as to avoid the 

absurdity’’); United States v. Kirby, 7 


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15A related line of cases addresses statutory 

provisions that directly, on their face, conflict with 

other statutory provisions. In these cases, as with 

the ‘‘absurd result’’ cases, the courts may decline 

to interpret literally the statutory provisions in 

question, and instead interpret them to give as 

much effect as possible to all of the relevant 

provisions. See, e.g., Mountain States Telephone 

and Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 

237 (1985); Clark v. Uebersee Finanz-Korporation, 

332 U.S. 480 (1947); Citizens to Save Spencer 

County v. EPA, 600 F.2d 844 (D.C. Cir. 1977). 

Wall, 482, 486, 19 L.Ed. 278 (1868) (the 

statute punishing obstruction of the 

mails is not to be applied to obstruction 

for the lawful purpose of arresting a 

mail carrier indicted for murder). 

The D.C. Circuit has also handed 

down several decisions that applied the 

absurd results doctrine to avoid a literal 

interpretation or application of statutory 

provisions. See Buffalo Crushed Stone, 

Inc. v. Surface Transportation Board, 

194 F.3d 125, 129–30 (D.C. Cir. 1999) 

(regulation of Surface Transportation 

Board providing that if a notice of 

exemption ‘‘contains false or misleading 

information, the use of the exemption is 

void ab initio’’ does not apply to a 

notice containing false information 

when declaring the notice void ab initio 

would undermine the goals of the 

governing statute; a conflict between the 

‘‘literal application of statutory 

language’’ and maintaining the integrity 

of the regulatory scheme should be 

resolved by construing the text in 

accordance with its purpose); U.S. v. 

Stewart, 104 F.3d 1377, 1388 (D.C. Cir. 

1997) Environmental Defense Fund v. 

EPA, 82 F.3d 451, 468–69 (D.C. Cir. 

1996) (although Clean Air Act requires 

that a Federal action conform to the 

State implementation plan that is 

currently in place, EPA may instead 

require conformity to a revised 

implementation plan that State commits 

to develop; ‘‘[t]his is one of those rare 

cases * * * [that] requires a more 

flexible, purpose-oriented interpretation 

if we are to avoid ‘absurd or futile 

results.’ ’’); In re Nofziger, 925 F.2d 428, 

434–35 (D.C. Cir. 1991) (provision 

authorizing payment of attorney fees to 

the subject of an investigation 

conducted by an independent counsel 

of the Department of Justice only if ‘‘no 

indictment is brought’’ against such 

individual does not preclude payment 

of attorney fees when an indictment is 

brought but is determined to be invalid). 

To determine whether ‘‘the intentions 

of the drafters’’ differ from the result 

produced from ‘‘literal application’’ of 

the statutory provisions in question, the 

courts may examine the overall context 

of the statutory provisions, including 

whether there are related statutory 

provisions that either conflict or are 

consistent with that interpretation,15

and including whether there is 

legislative history that exposes what the 

legislature meant by the terms in 

question. In addition, the courts may 

examine whether a literal application of 

the provisions produces a result that the 

courts characterize variously as absurd, 

futile, strange, or indeterminate, and 

therefore so illogical or otherwise 

contrary to sensible public policy as to 

be beyond anything Congress would 

reasonably have intended. After 

concluding this examination, the courts 

uphold an application of the provisions 

that, albeit not the literal application, is 

one that is nevertheless as consistent 

with congressional intent as possible. 

The U.S. Supreme Court applied the 

absurd results doctrine in Green v. Bock 

Laundry Machine Company, 490 U.S. 

504 (1989). There, the Court considered 

Federal Rule of Evidence 609(a), which 

provides: 

General Rule. For the purpose of attacking 

the credibility of a witness, evidence that the 

witness has been convicted of a crime shall 

be admitted * * * but only if the crime (1) 

[is of a specified type] and the court 

determines that the probative value of 

admitting this evidence outweighs its 

prejudicial effect to the defendant. 

(Emphasis added.) The Court recognized 

that read literally, Rule 609(a) applies in 

both criminal and civil litigation and 

gives an advantage to defendants. 

Specifically, the rule extends to both the 

criminal and civil defendants the 

protection of weighing the probative 

value of evidence of certain crimes 

against its prejudicial effect, but as for 

plaintiffs, the rule requires that 

evidence of those crimes be admitted 

without weighing against prejudicial 

effect. The Court found that for criminal 

litigation, this result makes sense 

because it is consistent with the greater 

protections generally afforded to 

defendants. However, for civil litigation, 

the Court found that this ‘‘literal reading 

would compel an odd result’’ because, 

among other things, civil defendants are 

not accorded greater protections than 

civil plaintiffs and, in any event, 

whether a litigant is designated plaintiff 

or defendant often is happenstance. The 

Court emphasized that ‘‘[n]o matter how 

plain the text of the Rule may be,’’ it 

could not accept this result, and 

concluded that ‘‘as far as civil trials are 

concerned, Rule 609(a)(1) ‘can’t mean 

what it says.’ ’’ 490 U.S. at 509–11 

(citations omitted). The Court reviewed 

the legislative history, and concluded 

that notwithstanding the plain language, 

Congress ‘‘intended that only the 

accused in a criminal case should be 

protected from unfair prejudice by the 

balance set out in Rule 609(a)(1).’’ Id. at 

523–24. 

In cases in which the ‘‘absurd results’’ 

doctrine of statutory constructions 

authorizes an agency to depart from the 

literal meaning of the statute, the agency 

must do so in as limited a manner as 

possible to effectuate underlying 

congressional intent. As the D.C. Circuit 

has stated: 

The rule that statutes are to be read to 

avoid absurd results allows an agency to 

establish that seemingly clear statutory 

language does not reflect the 

‘‘unambiguously expressed intent of 

Congress,’’ * * * and thus to overcome the 

first step of the Chevron analysis. But the 

agency does not thereby obtain a license to 

rewrite the statute. When the agency 

concludes that a literal reading of a statute 

would thwart the purposes of Congress, it 

may deviate no further from the statute than 

is needed to protect congressional intent. 

Mova Pharmaceutical Corp. v. Shalala, 140 

F.3d 1060, 1068 (D.C. Cir. 1998). 

5. PSD and Title V Applicability 

Requirements 

The plain meaning of the PSD 

applicability provisions in CAA 

§§ 165(a)(1) and 169(1) is clear that once 

PSD is triggered for GHG emissions, a 

source will be subject to PSD if it either 

belongs to one of 28 specifically 

identified source categories and 

‘‘emit[s], or ha[s] the potential to emit, 

one hundred tons per year or more of 

any air pollutant,’’ including GHGs, or 

does not belong to one of those source 

categories and has ‘‘the potential to emit 

two hundred and fifty tons per year or 

more of any air pollutant,’’ including 

GHGs. Similarly, the plain meaning of 

the title V applicability requirements in 

CAA §§ 501(2)(B) and 302(j) is clear that 

once the title V requirements are 

triggered, they would apply to a source 

that ‘‘directly emits, or has the potential 

to emit, one hundred tons per year or 

more of any air pollutant,’’ including 

GHGs. 

As described in detail elsewhere, 

applying the plain meaning of these 

provisions once PSD and title V are 

triggered for GHG emissions would 

impose PSD and title V permitting 

requirements on an extraordinarily large 

number of sources: The number of 

sources subject to PSD permits would 

increase from less than 300 per year to 

some 41,000 per year, and the number 

of sources subject to the title V 

requirements would grow from less than 

14,000 to some 6.1 million. For at least 

an initial period of time, before 

permitting authorities could develop 

streamlining mechanisms, these 

obligations would have severe effects. 

From the permitting authorities’ 

standpoint, the number of permit 

applications would far exceed their 


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16As noted elsewhere, because the applicability 

provisions apply on a potential-to-emit basis, as 

well as an actuals basis, the number of permit 

applications would be much greater than the 

permitting authorities assumed, and therefore the 

processing times would be much longer than 10 

years. 

administrative capacity, and would 

inevitably result in delays in issuance of 

permits to all sources—whether 

emitting conventional pollutants or 

GHGs—that would be measured in 

many years. From the sources’ 

standpoints, thousands of sources that 

are quite small and that have never been 

confronted with CAA obligations would 

incur the expenses of PSD permitting 

requirements, including, most 

importantly, indentifying and 

developing BACT controls on a sourceby-source basis. As for title V, millions 

of sources would be required to submit 

permit applications that meet title V 

requirements, even though the great 

majority of them would not be subject 

to any applicable CAA requirements. 

During this initial period, permitting 

authorities could develop streamlining 

approaches and ramp up administrative 

resources so that afterwards, they would 

be better able to accommodate the large 

numbers of permit applications and 

sources would be better able to comply. 

But, again, during the initial period, 

severe problems would ensue. 

We believe that these effects of a 

literal application of the PSD and title 

V applicability thresholds and their 

collateral consequences are well beyond 

anything that Congress envisioned when 

it drafted the PSD and title V 

requirements, and indeed undermine 

both permitting programs. As a result, 

these effects bring into play the ‘‘absurd 

results’’ doctrine. 

a. PSD 

(1) Tensions With Other Statutory 

Requirements 

Turning first to PSD, an important 

indication that Congress would not have 

intended that the threshold provisions 

be applied literally under the present 

circumstances may be found in the 

tensions that this literal application 

would create with other PSD provisions. 

CAA § 165(c) is particularly important 

in this regard. It requires that the 

permitting authority grant or deny 

‘‘[a]ny completed permit application for 

a major emitting facility * * * not later 

than one year after the date of filing of 

such completed application.’’ A literal 

interpretation of CAA sections 165(a)(1) 

and 169(1) to apply at the 100/250 tpy 

levels for GHG sources would render 

compliance with this provision 

impossible by requiring far more permit 

applications than permitting authorities 

could process under this 12-month 

deadline, for at least an initial period of 

time until streamlining methods are 

developed. As noted elsewhere, States 

have estimated that the number of PSD 

permits that would be required under a 

100/250 tpy threshold on an actuals 

basis would result in an average 

processing time of 10 years.16

A literal interpretation of CAA 

sections 165(a)(1) and 169(1) to apply at 

the 100/250 tpy levels would also be 

directly inconsistent with the PSDpurpose provision in CAA § 160, in 

particular, § 160(3), which is ‘‘to insure 

that economic growth will occur in a 

manner consistent with the preservation 

of existing clear air resources.’’ As the 

legislative history makes clear, Congress 

enacted the PSD provisions to resolve 

issues arising when sources of criteria 

pollutants seek to build or expand in 

areas with air quality that meets the 

national ambient air quality standards, 

but that would deteriorate with the 

addition of such new or expanded 

sources. Congress designed the PSD 

provisions to provide a mechanism for 

allowing sources to construct or modify 

in those clean-air areas, but with 

safeguards that both protected health 

and welfare, and that also left enough 

room in the airshed for still more 

economic growth. See, e.g., H. Rpt. 95– 

294, 95th Cong., 1st Sess., at 154 

(legislation ‘‘not only protect[s] public 

health and welfare but also assur[es] 

future air resources will be available for 

continuing the industrial and energy 

development so necessary for the 

growth of the Nation’’). Because PSD is 

a preconstruction requirement, 

increasing permitting authorities’ 

workload from 300 to 41,000 permits 

would severely undermine this purpose 

of facilitating economic growth, at least 

initially, until permitting authorities can 

develop streamlining methods and ramp 

up resources. Each year, many 

thousands of sources would face multiyear delays in receiving their permits, 

and as a result, for all practical 

purposes, they would be forced to place 

on hold indefinitely their plans to 

construct or modify. 

(2) Inconsistency With Congressional 

Intent 

The legislative history of the PSD 

provisions—enacted, again, in the 1977 

Clean Air Act Amendments—also 

makes clear that a literal application of 

the applicability provisions would lead 

to results that are diametrically 

inconsistent with Congress’s expressed 

intent. In reviewing the legislative 

history, it should be borne in mind that 

Congress was focused on sources of 

criteria pollutants—primarily sulfur 

dioxide (SO2), particulate matter, 

nitrogen oxides (NOX), and carbon 

monoxide (CO)—and not GHG 

emissions. This focus stems from the 

basic purpose of the PSD program, 

which is to safeguard maintenance of 

the NAAQS, combined with the limited 

awareness at that time of the problem of 

climate change. See S 95–127 (95th 

Cong., 1st Sess.), at 27. 

Congress designed the PSD provisions 

to impose significant regulatory 

requirements, on a source-by-source 

basis, to identify and implement BACT 

and, for criteria pollutant, to also 

undertake certain studies. Congress was 

well aware that because these 

requirements are individualized to the 

source, they are expensive. Accordingly, 

Congress designed the applicability 

provisions to apply these requirements 

to industrial sources of a certain type 

and a certain size—sources within 28 

specified source categories and that emit 

at least 100 tpy—as well as all other 

sources that emit at least 250 tpy, and, 

by the same token, to exempt other 

sources from these requirements. The 

legislative history shows that Congress’s 

limitation of PSD to larger sources was 

quite deliberate, and was based on its 

determination to limit the costs that 

PSD permitting entails to the larger 

sources in certain industries. The D.C. 

Circuit has had occasion, in Alabama 

Power, to acknowledge this legislative 

history: ‘‘Congress’s intention was to 

identify facilities which, due to their 

size, are financially able to bear the 

substantial regulatory costs imposed by 

the PSD provisions and which, as a 

group, are primarily responsible for 

emissions of the deleterious pollutants 

that befoul our nation’s air.’’ Alabama 

Power, 636 F.2d at 353. The Court 

added, ‘‘Though the costs of compliance 

with [the PSD] requirements are 

substantial, they can reasonably be 

borne by facilities that actually emit, or 

would actually emit when operating at 

full capacity, the large tonnage 

thresholds specified in section 169(1).’’. 

Id. at 354. 

Although Congress required that CAA 

requirements generally apply to ‘‘major 

emitting facilities,’’ defined as any 

source that emits or has the potential to 

emit 100 tpy of any pollutant, Congress 

applied PSD to only sources at 100 tpy 

or higher in 28 specified industrial 

source categories, and at 250 tpy or 

more in all other source categories. This 

distinction was deliberate: According to 

Sen. McClure, Congress selected the 28 

source categories after reviewing an EPA 

study describing 190 industrial source 

categories. 122 Cong. Rec. 24521 (July 

29, 1976) (statement by Sen. McClure). 


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17Note that although Congress specifically 

authorized the States to exempt ‘‘nonprofit health 

or education institutions’’ from the definition of 

‘‘major emitting facility,’’ this statement by the D.C. 

Circuit should be taken as the Court’s view that 

Congress did not design PSD to cover sources of the 

small size described. 

Congress also relied on an EPA 

memorandum that identified the range 

of industrial categories that EPA 

regulated under its regulations that 

constituted the precursor to the 

statutory PSD program, and listed both 

the estimated number of new sources 

constructing each year and the amount 

of pollution emitted by the ‘‘typical 

plant’’ in the category. The 

memorandum was prepared by B.J. 

Steigerwald, Director of the Office of Air 

Quality Planning and Standards and 

Roger Strelow, EPA’s Assistant 

Administrator for Air and Waste 

Management (‘‘Steigerwald-Strelow 

memorandum). The SteigerwaldStrelow memorandum makes clear that 

the 100 tpy cut-off for the 28 listed 

sources categories, and the 250 tpy cutoff for all other sources, was 

meaningful; that is, there were a large 

number of sources below those cut-offs 

that Congress explicitly contemplated 

would not be included in PSD. Id. at 

24548–50. 

Consistent with this, the legislative 

history on the Senate side also 

specifically identified certain source 

categories that Senators believed should 

not be covered by PSD. The Senate bill 

language limited PSD to sources of 100 

tpy or more in 28 listed source 

categories, and to any other categories 

that the Administrator might add. Sen. 

Muskie stated that the Senate bill 

excluded ‘‘houses, dairies, farms, 

highways, hospitals, schools, grocery 

stores, and other such sources.’’ 123 

Cong. Rec. 18021 (June 8, 1977) 

(statement of Sen. Muskie). Sen. 

McLure’s list of excluded source 

categories were ‘‘[a] small gasoline 

jobber, or a heating plant at a 

community college, [which] could have 

the potential to emit 100 tons of 

pollution annually.’’ 122 Cong. Rec. 

24548–49 (July 29, 1976) (statement of 

Sen. McClure). The Senate Committee 

Report included a comparable list, and 

in describing it, concisely articulated 

the cost-conscious basis for the linedrawing: ‘‘[the PSD] procedure * * * 

must include an effective review-andpermit process. Such a process is 

reasonable and necessary for very large 

sources, such as new electrical 

generating plants or new steel mills. But 

the procedure would prove costly and 

potentially unreasonable if imposed on 

construction of storage facilities for a 

small gasoline jobber or on the 

construction of a new heating plant at 

a junior college, each of which may 

have the potential to emit 100 tons of 

pollution annually.’’ S. Rpt. 95–127 at 

96–97. 

The enacted legislation differs from 

the Senate bill by replacing the 

authorization to EPA to include by 

regulation source categories in addition 

to the listed 28 source categories with 

an inclusion of all other sources if they 

exceed 250 tpy, and with an 

authorization for the States to exempt 

hospitals and educational institutions. 

But Congress’s overall intention remains 

clear, as the D.C. Circuit described in 

Alabama Power:. ‘‘Congress’s intention 

was to identify facilities which, due to 

their size, are financially able to bear the 

substantial regulatory costs imposed by 

the PSD provisions and which, as a 

group, are primarily responsible for 

emissions of the deleterious pollutants 

that befoul our nation’s air * * * [With 

respect to] the heating plant operating in 

a large high school or in a small 

community college * * * [w]e have no 

reason to believe that Congress intended 

to define such obviously minor sources 

as ’major’ for the purposes of the PSD 

provision.’’ 17 636 F.2d at 353–54. 

However, applying the 100/250 tpy 

threshold literally to CO2 emissions 

would frustrate congressional intent by 

subjecting to PSD sources that Congress 

specifically intended not to include. 

This occurs simply because although 

Congress evaluated whether sources 

should be included in PSD by reference 

to the amount of the emissions of 

conventional pollutants, many sources 

combust fossil fuels for heat or 

electricity, and the combustion process 

produces quantities of CO2 that are far 

in excess of the sources’ quantities of 

conventional pollutants and, in many 

cases, Congress’s carefully considered 

100 and 250 tpy thresholds. As a result, 

many of the ‘‘typical plant[s]’’ identified 

in the Steigerwald-Strelow 

memorandum that Congress thought 

would be excluded from PSD due to the 

relatively small amounts of their 

conventional pollutants would in fact be 

included due to the CO2emissions from 

their heating or electricity generating 

equipment.But the clearest and most 

important indication that applying the 

100/250 thresholds literally in the case 

of GHG emissions would undermine 

congressional intent comes in 

considering the emissions profile of the 

small-sized boilers. Congress focused 

closely on identifying which sources 

with emissions in excess of 100 tpy 

should not be subject to PSD even 

though they are subject to CAA 

requirements generally. But Congress 

viewed a large set of sources as emitting 

below 100 tpy and therefore not 

included in the PSD program and, 

indeed, not even subject to debate as to 

whether they should be included in the 

PSD program. Chief among these 

sources, in terms of absolute numbers of 

sources, were small boilers. The 

Steigerwald-Strelow memorandum 

identified two categories of these 

boilers, differentiated by size. The first 

ranges in size from 10 to 250 × 106 Btu/ 

hr, and has a ‘‘typical plant’’ size of 107

Btu/hr, with ‘‘BACT emissions from 

typical plant’’ of 53 tpy, and a total of 

1,446 sources in the category. The 

second category ranges in size from 0.3 

to 10 × 106 Btu/hr, and has a ‘‘typical 

plant’’ size of 1.3 × 106 Btu/hr, with 

‘‘BACT emissions from typical plant’’ of 

2 tpy, and a total of 11,215 sources in 

the category. The memorandum 

discusses these two categories in the 

context of explaining which source 

categories exceed a size of 100 tpy—and 

therefore would be subject to PSD if a 

100 tpy threshold were set—by stating, 

‘‘Fortunately, most truly small boilers 

and typical space heating operations 

would not be covered.’’ 122 Cong. Rec. 

24549 (July 29, 1976). However, if the 

CO2 emissions of these small boilers are 

considered, then most of them would be 

subject to PSD. In general, most boilers 

of these small sizes are fired with 

natural gas, and a natural gas boiler 

greater than 0.5 × 106 Btu/hr emits at 

least 250 tpy CO2. As a result, the small 

commercial and residential sources that 

include these boilers would become 

subject to PSD, and this would directly 

contravene Congress’s intention to limit 

PSD to ‘‘industrial plants of significant 

impact.’’ 122 Cong. Rec. 24548–49 

(statement of Sen. McClure). The 

legislative history also provides a 

window into the scope of the program 

that Congress anticipated and related 

administrability concerns. According to 

the Steigerwald-Strelow memorandum, 

the number of new sources each year 

whose ‘‘BACT emissions from typical 

plant’’ exceed 100 for the 28 listed 

source categories and 250 for all other 

source categories is less than 100 per 

year. Although the Steigerwald-Strelow 

memorandum does not attempt to 

estimate the number of modifications, it 

appears that based on this information, 

Congress had reason to expect the total 

size of the PSD program to be measured 

in the hundreds of permits each year. A 

program of this size would be 

manageable by EPA and the permitting 

authorities. 

The D.C. Circuit based its holding in 

Alabama Power that potential-to-emit 

for purposes of the applicability 

thresholds should be defined as 


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emissions at full capacity with 

implementation of control equipment, 

in part on its view that with this 

definition, the number of sources 

subject to PSD would be manageable: 

Though the costs of compliance with 

section 165 requirements are 

substantial, they can reasonably be 

borne by facilities that actually emit, or 

would actually emit when operating at 

full capacity, the large tonnage 

thresholds specified in section 169(1). 

The numbers of sources that meet these 

criteria, as we delineate them, are 

reasonably in line with EPA’s 

administrative capability. 

Alabama Power, 636 F.2d at 354 

(emphasis added). However, applying 

the thresholds literally to GHG 

emissions would increase the size of the 

PSD program far beyond what Congress 

had reason to expect and what the D.C. 

Circuit evidently had in mind. 

Returning to the Steigerwald-Strelow 

table, applying the thresholds literally 

would bring into PSD the great majority 

of the small boilers constructed each 

year, which numbered, in total, 12,661. 

Adding more sources from other source 

categories, and, most importantly, 

modifications, indicates that the size of 

the PSD program would very likely be 

at least an order of magnitude greater 

than what Congress intended. At least 

for an initial period of time, until 

streamlining methods could be 

developed, these numbers of sources 

would be well beyond the 

‘‘administrative capability’’ that the D.C. 

Circuit described EPA as having. 

(3) Absurd Results 

Applying the PSD thresholds to 

sources of GHG emissions literally 

results in a PSD program that is so 

contrary to what Congress had in 

mind—and that in fact so undermines 

what Congress attempted to accomplish 

with the PSD requirements—that it 

should be avoided under the ‘‘absurd 

results’’ doctrine. As described above, 

Congress designed the PSD program as 

a mechanism to allow construction of 

new sources and expansion of existing 

sources in areas meeting the NAAQS, 

but only after those sources, on a 

source-by-source basis, undertook 

analyses to demonstrate that their 

emissions would not significantly 

deteriorate air quality and implemented 

controls representing BACT. 

Recognizing that PSD imposed 

significant costs on sources, Congress 

constructed a statutory scheme that it 

viewed as limiting PSD to large 

industrial sources that could bear the 

financial costs and that caused most of 

the pollution problem. These limits 

were the 100/250 tpy thresholds. 

Congress had reason to expect that with 

these thresholds, the program would 

approximate the size of the current PSD 

program, which numbers in the 

hundreds of sources each year. 

Throughout its deliberations, Congress 

focused primarily on emissions of 

conventional pollutants. 

But applying the 100/250 tpy 

thresholds literally to sources of CO2

would sweep aside this carefully 

designed construct by bringing in tens 

of thousands of sources of a different 

type and much smaller size than 

Congress had in mind: Commercial and 

residential sources whose primary—if 

not sole—source of emissions is CO2

from small boilers that primarily 

provide heat. Moreover, applying the 

thresholds literally would bring in many 

additional sources in the source 

categories Congress expected PSD to 

apply to, but of a size Congress expected 

to be below the cut-off. Congress did not 

intend to apply PSD to these sources 

because of the expenses that compliance 

with PSD entails and because Congress 

did not view these sources as causing a 

sufficiently great part of the pollution 

problem. Including these sources would 

also expand the PSD program to well 

beyond what Congress had reason to 

expect, and what permitting authorities 

can administer. 

The administrability problems lead 

the results of applying the thresholds 

literally beyond contravening 

congressional intent and into actually 

undermining congressional intent. At 

least for an initial period, until 

streamlining methods could be 

developed, the extraordinary number of 

sources subject to PSD would preclude 

the permitting authorities from 

processing permit applications for all 

sources, including those that Congress 

intended be subject to PSD. Because 

PSD is a preconstruction program, those 

sources would face many years of delay 

before they could construct or modify, 

which would undermine congressional 

intent to allow economic growth in PSD 

areas. These results are the types of 

‘‘absurd results’’ from a literal reading of 

statutory provisions that courts have 

declined to sanction. 

b. Title V 

For title V, the application of the 

absurd results doctrine parallels that of 

PSD. First, a literal application of the 

100 tpy threshold requirement in CAA 

§§ 502(a), 501(2)(B), and 302(j) would be 

in tension with a specific CAA 

requirement, that of CAA § 503(c), 

which imposes a time limit of 18 

months from the date of receipt of the 

completed permit application for the 

permitting authority to issue or deny the 

permit. It would be flatly impossible for 

permitting authorities to meet this 

statutory requirement if their workload 

increases from some 14,000 permits to 

6.1 million. Instead, permit applications 

would face multi-year delays in 

obtaining their permits. 

Moreover, these delays would 

undermine the overall statutory design 

that promotes the smooth-running of the 

permitting process, and the very 

purpose of the title V program itself. As 

noted elsewhere, Congress intended 

through title V to facilitate compliance 

by establishing an operating permit 

program that requires the source to 

combine in a single permit all of its 

CAA requirements. Congress established 

a comprehensive process to implement 

the operating permit program. Through 

this process, following the date that 

sources become subject to title V, they 

have 1 year to submit their permit 

applications. CAA § 503(c). As noted, 

the permitting authority then has 18 

months to issue or deny the permit. 

CAA § 503(c). Permitting authorities 

must provide an opportunity for public 

comment and a hearing. CAA 

§ 502(b)(6). If the permitting authority 

proposes to issue the permit, the 

permitting authority must submit the 

permit to EPA, and notify affected 

States, for review. CAA § 505(a)(1). EPA 

then has 45 days to review the permit 

and, if EPA deems it appropriate, to 

object to the permit. CAA § 503(b)(1). If 

EPA does object, then the permitting 

authority must, within 90 days, revise it 

to meet the objections, or else EPA 

becomes required to issue or deny the 

permit. CAA § 503(c). If EPA does not 

object, then, within 60 days of the close 

of the 45-day review period, any person 

may petition EPA to object, and EPA 

must grant or deny the petition within 

60 days. This set of applicant, 

permitting authority, and EPA actions 

and deadlines establishes the process 

for the prompt and efficient issuance of 

operating permits for the appropriate 

universe of sources. 

The legislative history of title V, 

enacted by Congress in the 1990 CAA 

Amendments, indicates that Congress 

expected the provisions to apply to a 

much smaller set of sources than would 

become subject at a 100-tpy GHG 

threshold level. The Senate Committee 

report noted that under the title V 

provisions that would be enacted, ‘‘the 

additional workload in managing the air 

pollution permit system is estimated to 

be roughly comparable to the burden 

that States and EPA have successfully 

managed under the Clean Water Act[,]’’ 

under which ‘‘some 70,000 sources 

receive permits, including more than 

16,000 major sources.’’ S. Rep. 101–228, 


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at 353. Applying title V to GHG emitters 

at the 100-tpy threshold would result in 

approximately 6.1 million sources 

becoming subject to title V, which is far 

in excess of the number that Congress 

contemplated. 

Moreover, the great majority of these 

sources will not be subject to any CAA 

requirements, so that although they 

would need to apply for and receive a 

permit, there would be no applicable 

requirements to include in the permit 

and the exercise would not improve 

compliance. But at least for an initial 

period, until streamlining methods 

could be developed, the extraordinary 

numbers of these sources would sweep 

aside Congress’ carefully constructed 

program, with its multi-step process and 

deadlines of as short as 45 days—and 

instead, backlog the permit authorities 

for many years. Multi-year delays in 

issuance of all permits would ensue, 

those for sources that have applicable 

requirements and that Congress clearly 

intended the program to cover, and for 

the millions of sources that are not 

subject to any applicable requirements. 

Thus, as with PSD, a literal 

interpretation of the title V threshold 

provisions would apply title V to 

millions of sources that Congress did 

not intend be covered, and the ensuing 

administrative burdens—at least 

initially—would impede the issuance of 

permits to the thousands of sources that 

Congress did intend be covered. This 

result is the type of ‘‘absurd results’’ 

from a literal application of statutory 

provisions that the courts have held 

should be avoided. 

c. Application of PSD and Title V 

Thresholds 

Because a literal application of both 

the PSD and title V threshold 

requirements produces absurd results, 

EPA may develop a different application 

that promotes consistency with other 

statutory provisions and is consistent 

with congressional intent. We believe 

that this proposal would achieve these 

objectives by establishing a threshold 

for the first phase at the level of 25,000 

tpy CO2e, and committing to vigorous 

efforts to streamline implementation of 

both programs’ requirements and to 

complete a study and then conduct 

further rulemaking. 

A first phase 25,000-tpy CO2e major 

source GHG threshold, combined with 

vigorous efforts to develop streamlining 

methods, is consistent with 

congressional intent for the PSD 

provisions for several reasons. The 

25,000-tpy CO2e threshold reconciles 

the PSD provisions that, absent this 

regulation, would be in tension with 

each other, and thereby maintains the 

overall functioning of the PSD program. 

The threshold maintains the 

environmental purposes of the PSD 

program, while allowing economic 

growth, as set forth in CAA § 160. As 

discussed elsewhere in this preamble, a 

majority of stationary source GHG 

emissions in the U.S. come from a 

relatively small number of high-emitting 

sources that would remain subject to 

PSD because they emit at or above the 

25,000-tpy CO2e threshold. By 

comparison, about 75 percent of 

stationary source GHG emissions come 

from all sources above 250 tpy. 

Accordingly, the 25,000-tpy CO2e 

threshold would, during this first phase, 

exempt from PSD numerous small 

sources that emit only about 7 percent 

of GHGs, and that smaller amount of 

emissions coverage would not 

jeopardize the environmental protection 

goals of PSD. Moreover, the program 

will remain of a manageable size, so that 

permitting authorities will be able to 

process permit applications and issue 

permits, which sources must have to 

construct or expand. As discussed 

elsewhere, the information available to 

us indicates that the 25,000-tpy CO2e 

level is the level closest to the statutory 

levels that permitting authorities can 

reasonably administer during this initial 

phase. The ‘‘absurd results’’ caselaw 

requires that if a statutory provision 

cannot be applied literally, then it 

should be applied as close to literally as 

possible, consistent with congressional 

intent. With this level of 25,000-tpy 

CO2e, permitting authorities would be 

able to reasonably comply with the 12- 

month deadline requirement for acting 

on PSD permit applications under CAA 

§ 165(c). Further, the first phase 

threshold of 25,000 tpy and the 

development of streamlining methods is 

consistent with congressional intent to 

limit the PSD program—with the high 

costs that result from its source-bysource applications—to sources that can 

bear the costs. The first phase would 

allow for the implementation of 

streamlining methods, which could 

facilitate the orderly development of the 

program by reducing the costs of 

compliance for sources of GHG 

emissions. In addition, the first phase 

threshold maintains the program at a 

manageable size so that permitting 

authorities will be able to continue to 

timely issue permits to sources seeking 

to construct or expand. 

The first phase 25,000-tpy CO2e 

threshold, combined with the 

development of streamlining methods 

and the study and subsequent 

regulations, is also consistent with the 

purposes of the title V provisions. This 

first phase would assure a manageable 

size for the program so that permitting 

authorities could continue to issue 

permits to sources with applicable CAA 

requirements, as Congress intended. The 

implementation of streamlining 

methods—in particular, general 

permits—could facilitate the orderly 

development of the title V program to 

include a broader set of sources based 

on their GHG emissions. 

B. ‘‘Administrative Necessity’’ Doctrine 

1. Overview 

Once EPA takes regulatory action to 

trigger PSD and title V requirements for 

GHG emitters, a literal application of the 

PSD and title V applicability 

requirements (i.e., the 100/250-tpy PSD 

major stationary source threshold and a 

‘‘zero’’ significance level threshold, and 

the 100-tpy title V threshold) would 

result in a volume of permit 

applications that is so high that the PSD 

and title V programs would become 

impossible for State and Federal 

authorities to administer. The PSD and 

title V permitting processes would 

become overwhelmed and essentially 

paralyzed. 

Under these circumstances, the 

judicial doctrine of administrative 

necessity authorizes EPA to undertake a 

process for rendering the PSD and title 

V requirements administrable. As part 

of this process, EPA must consider ways 

to streamline the PSD and title V 

definitions and operative requirements 

so that the permitting authorities may 

more efficiently process the expected 

influx of GHG permit applications. 

These streamlining methods may 

include refinements to the definition of 

PTE and issuance of some form of 

general permits with presumptive 

BACT. See section VII.A of this 

preamble for a description of what these 

streamlining methods entail for PSD and 

title V programs, respectively. 

However, the development, adoption, 

and implementation of these 

streamlining approaches would take 

several years, and, upon their 

completion, would still leave permitting 

authorities confronting a sufficiently 

large increase in workload that, absent 

a corresponding increase in resources, 

would continue to render the PSD and 

title V programs impossible to 

administer. See section VII of this 

preamble for an explanation of the 

procedures and timeframes necessary to 

develop these streamlining techniques. 

As a result, under the doctrine of 

administrative necessity, EPA is 

authorized to phase in the PSD and title 

V requirements in as refined a manner 

as possible, so as to allow 


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18 It should be noted that numerous cases have 

held that an agency may consider administrative 

factors in choosing regulatory policies under 

statutory provisions that authorize choices. See, 

e.g., National Mining Association v. EPA, 59 F.3d 

1351, 1364 (D.C. Cir. 1995); Phillips Petroleum Co. 

v. EPA, 803 F.2d 545, 562 (D.C. Cir. 1986); National 

Wildlife Federation v. Gorsuch, 693 F.2d 156, 182 

(D.C. Cir. 1982). While these cases support the 

general proposition that administrative 

considerations are important, they differ from the 

‘‘administrative necessity’’ doctrine because in 

those cases, the Agency’s actions were within the 

ambit of the statutory language; whereas under the 

‘‘administrative necessity’’ doctrine, the Agency’s 

actions depart from the statutory language. 19The Court also explained that in that case, 

EPA’s concern that large numbers of small sources 

would be subject to PSD was misplaced because it 

was based on an erroneous interpretation of the 

requirement that the threshold for determining 

whether a source was a major emitting facility (and 

thereby subject to PSD) was the source’s PTE. EPA 

erroneously believed that PTE had to be calculated 

without reference to pollution controls, an 

interpretation that would have meant that many 

sources of a low level of actual emissions would be 

treated as major emitting facilities. The Court held, 

in another part of the Alabama Power opinion, that 

PTE must be calculated with reference to pollution 

controls, and went on to observe that this holding 

effectively mooted EPA’s concerns that underlay its 

effort to exempt 50-tpy-or-less sources from PSD 

requirements. 

administration of the PSD and title V 

programs. As part of the first phase, EPA 

proposes to establish the thresholds at 

the levels proposed, as well as 

undertake streamlining as much as 

possible and as quickly as possible, and 

explore with permitting authorities 

methods to ramp up resources for 

processing GHG permit applications. 

EPA also commits to conduct an 

assessment of the administrability issue 

within 5 years and, by the end of 1 year 

later, promulgate the second phase of 

the tailoring process, which would 

include the thresholds and streamlining 

methods determined at that time to be 

appropriate. 

2. Chevron Standard for Statutory 

Interpretation 

As noted above, the PSD requirements 

apply to the construction and 

modification of a ‘‘major emitting 

facility,’’ CAA §§ 165(a)(1), 169(2)(C), 

which is defined as a ‘‘stationary 

source[ ] [in one of 28 listed categories 

of sources] of air pollutants which 

emit[s], or ha[s] the potential to emit, 

one hundred tons per year or more of 

any air pollutant’’ or ‘‘any other source 

with the potential to emit two hundred 

and fifty tons per year or more of any 

air pollutant,’’ with certain exceptions. 

CAA § 169(1). The title V requirements 

apply to any ‘‘major source,’’ CAA 

§ 502(a), which is defined to include 

‘‘any stationary facility or source of air 

pollutants which directly emits, or has 

the potential to emit, one hundred tons 

per year or more of any air pollutant.’’ 

CAA §§ 501(2)(b), 302(j). 

Although these applicability 

provisions are clear by their terms, the 

Courts have held that the Chevron 

approach of applying the literal 

language of the provisions may not 

apply when the administrability of the 

provisions is at issue. 

3. Doctrine of Administrative Necessity 

a. Administrative Necessity Doctrine in 

the Context of Chevron 

The Courts have acknowledged the 

administrative necessity doctrine as an 

overlay on the Chevron doctrine of 

statutory construction, so that even 

when a statutory requirement expresses 

a clear congressional intent, if the 

provision is impossible for the agency to 

administer, then the agency is not 

required to follow the literal 

requirements, and instead, the agency 

may adjust the requirements in as 

refined a manner as possible to assure 

that the requirements are administrable, 

while still achieving Congress’s overall 

intent. As discussed below, the D.C. 

Circuit set out the doctrine of 

‘‘administrative necessity’’ in a line of 

cases that most prominently includes 

Alabama Power v. Costle, 636 F.2d 323 

(D.C. Cir. 1980). The Court cited the 

doctrine most recently in New York v. 

EPA, 443 F.3d 880, 884, 888 (D.C. Cir. 

2006).18

b. Alabama Power 

The Court provided its most robust 

expression of the ‘‘administrative 

necessity’’ doctrine in the seminal 

decision, Alabama Power Co. v. Costle, 

636 F.2d 323 (D.C. Cir. 1980) (Alabama 

Power), a case that resolved industry 

and citizens group challenges to many 

aspects of the regulations EPA 

promulgated shortly after enactment of 

the 1977 CAA Amendments to 

implement the newly enacted statutory 

provisions. One regulatory provision 

purported to exempt sources that 

qualified as major emitting facilities if 

their actual emissions were 50 tpy or 

less. EPA sought to justify this provision 

on grounds that some 2,400 major 

emitting facilities emit 50 tpy or less, 

and that the large burdens on the agency 

and industry of permit development and 

review would outweigh the small 

benefits of permitting. The Court 

invalidated this regulatory exemption as 

not authorized by the statute, but in so 

doing, recognized EPA’s concerns about 

administrative burdens and, 

anticipating future agency efforts to 

adjust statutory mandates to 

administrative realities, went on to 

articulate the basis for the 

administrative necessity doctrine.19 636 

F.2d at 356–57. 

First, the D.C. Circuit described the 

basis for the administrative necessity 

doctrine as, in effect, an overlay on clear 

statutory intent. Specifically, in a 

section of the opinion titled, 

‘‘Exemptions Born of Administrative 

Necessity,’’ the Court stated: 

Certain limited grounds for the creation of 

exemptions are inherent in the 

administrative process, and their 

unavailability under a statutory scheme 

should not be presumed, save in the face of 

the most unambiguous demonstration of 

congressional intent to foreclose them. 

Id. at 357. 

Second, the Court identified several 

types of administrative relief that may 

be available to an agency. One is 

‘‘[c]ategorical exemptions from the clear 

commands of a regulatory statute,’’ 

which the court stated are ‘‘sometimes 

permitted,’’ but emphasized ‘‘are not 

favored.’’ Id. at 358. A second is ‘‘an 

administrative approach not explicitly 

provided in the statute,’’ such as 

‘‘streamlined agency approaches or 

procedures where the conventional 

course, typically case-by-case 

determinations, would, as a practical 

matter, prevent the agency from carrying 

out the mission assigned to it by 

Congress.’’ Id. A third is a delay of 

deadlines upon ‘‘a showing by [the 

agency] that publication of some of the 

guidelines by that date is infeasible.’’ Id. 

at 359 (quoting NRDC v. Train, 510 F.2d 

692, 712 (D.C. Cir. 1974). 

Finally, the Court explained it would 

evaluate whether the agency faced an 

administrative impossibility, and the 

acceptability of the agency’s choices, 

based on the essential circumstances 

confronting the agency, including the 

volume and nature of the tasks required 

of the agency, its financial and 

personnel resources, and the time 

available to it. Specifically, the Court 

observed that the administrative 

necessity doctrine would apply based 

on the ‘‘administrative need to adjust to 

available resources * * * where the 

constraint was imposed * * * by a 

shortage of funds * * *, by a shortage 

of time, or of the technical personnel 

needed to administer a program.’’ Id. at 

358. The Court added that another 

administrative constraint could be ‘‘the 

degree of administrative burden posed 

by enforcement.’’ Id. at 405. See NRDC 

v. Train, 510 F.2d 692, 712 (D.C. Cir. 

1974) (recognizing constraints imposed 

by budgetary commitments, manpower 

demands, or inability to evaluate 

sufficiently the necessary scientific and 

technical determinations). 

Even so, the Court went on to caution 

that ‘‘administrative necessity’’ is a high 

hurdle: ‘‘[T]he agency [bears] a heavy 


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20Although Alabama Power presented the D.C. 

Circuit’s most robust exposition of the 

administrative necessity doctrine, the Court first 

identified the doctrine, albeit in the relatively 

narrow application of a deadline extension, in the 

1974 decision, NRDC v. Train, 510 F.2d 692 (D.C. 

Cir. 1974). There, the Court considered EPA 

objections that it would be unable to meet a 

statutory requirement that established a deadline 

for promulgating effluent limitations. While 

declining to grant extensions of the deadline in that 

case, the Court acknowledged that under certain 

circumstances, judicial relief in the form of a 

deadline extension would be warranted in light of 

administrative considerations. The Court observed 

that ‘‘budgetary commitments and manpower 

demands’’ needed to meet a deadline could be 

‘‘beyond the agency’s capacity or would unduly 

jeopardize the implementation of other essential 

programs;’’ and that ‘‘EPA may be unable to 

conduct sufficient evaluation of available control 

technology’’ by the deadline. Under these 

circumstances, the Court stated, ‘‘[t]he courts 

cannot responsibly mandate flat * * * deadlines 

* * *.’’ The Court grounded its conclusion, that a 

court could consider administrative considerations 

in evaluating an agency’s claimed inability to meet 

a statutorily mandated deadline, in a court’s 

equitable powers to fashion appropriate relief. Id. 

at 713 (citations omitted). Although the NRDC v. 

Train decision concerned the agency’s compliance 

with deadlines, which are a relatively narrow issue, 

the case established the proposition that an agency 

may, under certain circumstances, depart from a 

statutory mandate due to administrative 

considerations. 

burden to demonstrate the existence of 

an impossibility.’’ Id. at 359. The Court 

particularly noted its reticence to 

uphold agency claims of administrative 

impossibility when those claims are 

made in advance of actual efforts to 

administer or enforce: ‘‘The agency’s 

burden of justification in such a case is 

especially heavy.’’ Id. at 359. 

In Alabama Power, the D.C. Circuit 

emphasized that its exposition of the 

administrative necessity doctrine was 

consistent with U.S. Supreme Court 

decisions holding that administrative 

considerations could factor into agency 

decisions. The D.C. Circuit noted that 

the Supreme Court, in Permian Basin 

Area Rate Cases, 390 U.S. 747 (1968), 

‘‘approv[ed] the adopting by the FPC of 

area rate regulation as the practical 

means to regulate thousands of natural 

gas producers,’’ and quoted the 

Supreme Court as explaining, 

‘‘[c]onsiderations of feasibility and 

practicality are certainly germane to the 

issues before us. * * * We cannot, in 

these circumstances, conclude that 

Congress has given authority inadequate 

to achieve with reasonable effectiveness 

the purpose for which it has acted.’’ 

Alabama Power, 636 F.2d at 359 (citing 

Permian Basin Area Rate Cases, 390 

U.S. at 777). The Court in Alabama 

Power also cited Morton v. Ruiz, 415 

U.S. 199, 230–31 (1973), in which the 

Supreme Court ‘‘acknowledged the 

substantive authority of the Secretary [of 

the Bureau of Indian Affairs] to take 

appropriate action to cope with the 

administrative impossibility of applying 

the commands of the substantive 

statute. Alabama Power, 636 F.2d at 

359.20

It should be emphasized that the 

Court in Alabama Power discussed the 

‘‘administrative necessity’’ doctrine in 

the context of PSD applicability, which, 

along with title V applicability, is the 

subject of this action. The Court 

discussed the doctrine extensively in 

the part of its opinion that followed its 

invalidation of EPA regulations that 

attempted to overlay an exemption for 

PSD applicability onto statutory 

requirements, where the Court stated it 

was anticipating future agency efforts to 

adjust statutory mandates to 

administrative realities. Id. at 356–57. 

Moreover, the Court made clear in 

another part of its opinion that the 

doctrine could be applied to another 

aspect of PSD applicability, concerning 

existing sources. There, the Court stated: 

EPA does have discretion, in administering 

the statute’s ‘‘modification’’ provision, to 

exempt from PSD review some emission 

increases on grounds of de minimis or 

administrative necessity. 

Id. at 400. 

c. Case Law After Alabama Power 

Shortly after Alabama Power, the D.C. 

Circuit reiterated the validity of the 

‘‘administrative necessity’’ doctrine in 

EDF v. EPA, 636 F.2d 1267 (D.C. Cir. 

1980), which reviewed the legality of 

EPA’s regulation of polychlorinated 

biphenyls (PCBs) under the Toxic 

Substances Control Act. As the Court 

noted, ‘‘The statutory language is 

simple: ‘‘no person may * * * use any 

polychlorinated biphenyl in any manner 

other than in a totally enclosed 

manner.’’ 15 U.S.C. 2605(e)(2)(A). 

Similarly, the prohibitions on 

manufacture, processing, and 

distribution refer to ‘‘any 

polychlorinated biphenyl.’’ See id. 

§ 2605(e)(3)(A).’’ EDF v. EPA, 636 F.2d 

at 1281. EPA’s regulations exempted 

materials containing concentrations of 

PCBs less than 50 parts per million 

(ppm). EPA justified the 50-ppm cutoff 

as an exemption based on 

administrative necessity. The Court 

reiterated that such an exemption was at 

least potentially available. Quoting 

Alabama Power, the Court stated: 

Under the heading of ‘‘administrative 

necessity,’’ this court has recognized that an 

agency may depart from the requirements of 

a regulatory statute. * * * While the court in 

Alabama Power emphasized that ‘‘categorical 

exemptions from the clear commands of a 

regulatory statute, though sometimes 

permitted, are not favored.’’ Id. at 358–360, 

it also noted that there is ‘‘substantive 

authority (for an agency) to take appropriate 

action to cope with the administrative 

impossibility of applying the commands of 

the substantive statute.’’ Id. at 358–359. 

EDF v. EPA, 636 F.2d at 1283. However, 

on the facts before it, the Court found 

that EPA had not ‘‘made [a] showing 

that it cannot carry out the statutory 

commands for concentrations of PCBs 

below fifty ppm,’’ and therefore that 

‘‘EPA [had] fail[ed] to meet its heavy 

burden. Thus, administrative need, on 

this record, provides no basis for the 

fifty ppm cutoff.’’ Id. 

Some 3 years later, the D.C. Circuit 

handed down a decision concerning the 

‘‘administrative necessity’’ doctrine in 

Sierra Club v. EPA, 719 F.2d 436, 463 

(D.C. Cir. 1983). There, the Court 

reviewed EPA’s efforts to justify a 

narrow regulatory definition of 

‘‘dispersion techniques’’ on 

administrative necessity. CAA § 123 

prohibits the use of tall stacks and 

‘‘other dispersion techniques’’ to meet 

emissions limitations. The Court found 

that the term ‘‘dispersion techniques’’ 

should be defined broadly ‘‘to 

encompass * * * the use of devices, 

alterations to the stack, or other 

techniques when they are significantly 

motivated by an intent to gain emissions 

credit for greater dispersion.’’ Id. at 462. 

EPA’s regulations defined the term 

narrowly to include only certain types 

of equipment, and not to require an 

inquiry into intent. The Court observed, 

that ‘‘[s]ince the regulations do not 

regulate all the techniques contained in 

this definition, the regulations 

effectively create an exemption not 

indicated in the statute itself. Such 

categorical exemptions are generally not 

favored * * * but there are two 

situations in which they are allowed: 

Cases of administrative necessity and de 

minimis situations’’ (citing Alabama 

Power). Id. Thus, the Court affirmed that 

the doctrine of ‘‘administrative 

necessity’’ could be used to allow an 

agency to depart from the requirements 

of the statute. 

The Court went on to find, however, 

that in this case, EPA’s justification for 

‘‘administrative necessity’’ was not 

sufficient. EPA had explained that 

defining ‘‘dispersion techniques’’ more 

broadly to necessitate inquiring into a 

source’s subjective intent as to whether 

other equipment or methods were 

designed to disperse emissions, as 

opposed to achieving some other end, 

would be ‘‘difficult’’ to enforce, a 

conclusion generally supported by a few 

State and local agencies that commented 

on the rule. The Court found that the 

Agency’s narrow definition of 

‘‘dispersion techniques’’ amounted to a 


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21Shortly after Sierra Club, the D.C. Circuit 

considered another case that raised an 

‘‘administrative impossibility’’ issue, Northern 

Colorado Water Conservancy Dist. v. FERC, 730 

F.2d 1509 (D.C. Cir. 1984) (NCWCD). However, 

there the Court did not appear to follow the line of 

cases that included Alabama Power. In NCWCD, the 

Court found that the Federal Energy Regulatory 

Commission (FERC) improperly failed to comply 

with requirements under section 4(f) of the Federal 

Power Act to give written notice to local water 

authorities of preliminary permit applications filed 

by private developers for a hydroelectric power 

project. In failing to give notice, FERC had followed 

a longstanding, but unannounced policy, which it 

justified in part on grounds ‘‘that strict adherence 

to the statute’s language would be administratively 

impossible.’’ FERC explained that the requirement 

to notify municipalities required administrative 

flexibility in light of the ‘‘estimated 50,000 

specialized local governmental units performing a 

myriad of services,’’ many of which, ‘‘such as water, 

utility or drainage districts, are not readily 

identifiable.’’ 

The Court rejected FERC’s contention that those 

administrative concerns justify FERC’s practices. 

Without citing Alabama Power or any of its other 

decisions concerning the ‘‘administrative necessity’’ 

doctrine, the Court stated that those practices must 

nevertheless remain ‘‘within a range of 

reasonableness with respect to Congress’ 

instruction,’’ that is, within the ambit of the 

statutory requirements, as well as be reasonably 

well articulated and generally made known to the 

public, and that in this case, FERC’s practices failed 

on all those counts. 731 F.2d at 1521. 

Notwithstanding this case, the weight of the D.C. 

case law supports the availability of the 

administrative necessity doctrine to authorize 

agency departure from statutory requirements in 

limited circumstances. 

categorical exemption from statutory 

requirements, and one that was based 

on Agency predictions of future 

enforcement difficulties rather than 

actual experience. The Court reiterated 

its statements in Alabama Power under 

these circumstances, that the Agency’s 

burden of showing impossibility is 

especially heavy, and that in this case, 

EPA’s showing ‘‘falls far short.’’ Id. at 

463. The Court added that EPA may be 

able to develop ‘‘less taxing’’ ways to 

define ‘‘dispersion techniques,’’ 

including developing classes of plant 

techniques that could be considered to 

be dispersion techniques. Id.21

In 1989, in Public Citizen v. FTC, 869 

F.2d 1541 (D.C. Cir. 1989), the D.C. 

Circuit reiterated the validity of the 

‘‘administrative necessity’’ doctrine, 

although on the facts, the Court held 

that the Federal Trade Commission’s 

(FTC) claims of administrative necessity 

failed. There, the Court considered the 

Smokeless Tobacco Act, which, 

according to the Court, ‘‘imposes a 

blanket requirement, subject only to one 

narrow and specifically mentioned 

exception for billboard advertising, that 

producers and distributors of smokeless 

tobacco products must include a 

warning label whenever they ‘advertise 

* * * any smokeless tobacco product.’ 

15 U.S.C. 4402(a)(2).’’ Id. at 1553. In the 

face of this provision, the FTC issued an 

exemption for utilitarian items (ranging 

from golf balls to T-shirts) distributed 

for promotional purposes, so that such 

objects would not need to include the 

warning label. The FTC attempted to 

justify the exemption on grounds of 

administrative necessity. The Court 

acknowledged the doctrine, stating that 

‘‘there exists a narrow range of inherent 

discretion in an agency to create caseby-case exceptions in order to come 

within the practical limits of feasibility 

in administering a statute.’’ Id. at 1556 

(citing Alabama Power) (emphasis 

added by Court). However, the Court 

went on to dismiss the FTC’s claims of 

administrative necessity, stating that the 

FTC had not justified its application and 

suggesting that the FTC had improperly 

undertaken a cost-benefit analysis in the 

guise of an administrative necessity 

claim. Id. 

d. Analogous Case Law Concerning 

Other Legal Obligations 

There is another line of case law, 

which involves contempt-of-court 

proceedings, in which the Courts 

recognize that impossibility of 

performance is relevant to the lawful 

discharge of legal obligations, and this 

case law provides some analogous 

support to the administrative necessity 

doctrine. In contempt-of-court 

proceedings, as the Supreme Court has 

noted, ‘‘a defendant may assert a present 

inability to comply with the order in 

question’’ and may thereby be excused 

from the duty to comply. U.S. v. 

Rylander, 460 U.S. 752, 757 (1983) 

(citing Maggio v. Zeitz, 333 U.S. 56, 75– 

76 (1948); Oriel v. Russell, 278 U.S. 358, 

366 (1929)) (emphasis in original) 

(‘‘Rylander’’). In addition, as discussed 

below, this doctrine applies fully to 

administrative agencies, providing even 

closer analogous support for the 

doctrine of administrative necessity. 

Even so, it should be acknowledged that 

the extent of support is limited because 

the contempt-of-court line of cases 

involves a court’s equitable discretion in 

enforcing court orders, and the 

administrative necessity line of cases 

involves the extent to which a Court 

will allow deviation from explicit 

statutory requirements. 

In Rylander, which involved a 

corporate officer’s failure to comply 

with a civil contempt order imposed for 

noncompliance with an earlier order 

enforcing an IRS summons, the Court 

stated that ‘‘[w]hile the court is bound 

by the enforcement order, it will not be 

blind to evidence that compliance is 

now factually impossible. Where 

compliance is impossible, neither the 

moving party nor the court has any 

reason to proceed with the civil 

contempt action.’’ Rylander, 460 U.S. at 

757 (finding that contemnor failed to 

meet the burden of production sufficient 

to establish an impossibility defense). 

The D.C. Circuit, noting that ‘‘[i]t is 

well established that impossibility of 

performance constitutes a defense to a 

charge of contempt,’’ has recognized 

that the Court has an obligation to 

‘‘consider carefully a claim by the 

alleged contemnor that compliance was 

impossible. * * * Although both the 

fact and duration of noncompliance 

with [an] order are elements to be 

considered, the court must consider as 

well [a party’s] inability, without fault 

on its part, to render obedience.’’ 

Tinsley v. Mitchell, 804 F.2d 1254 (D.C. 

Cir. 1986) (quoting SEC v. Ormant Drug 

& Chemical Co., 739 F.2d 654, 656–57 

(D.C. Cir. 1984)) (remanding to District 

Court to adjudicate contemnor’s claim 

of inability to pay fines). 

Importantly, the doctrine is fully 

available to government agencies, as the 

D.C. Circuit affirmed in Evans v. 

Williams, 206 F.3d 1292 (D.C. Cir. 

2000). There, in a class action 

challenging conditions at a public 

institution for the mentally retarded, the 

District of Columbia failed to comply 

with deadlines set in a consent decree, 

citing unanticipated ‘‘financial 

problems of horrendous proportions.’’ 

Id. at 1293. Discussing the district 

court’s refusal to make retroactive a 

modification of the consent decree 

ameliorating the financial penalties for 

missing deadlines, the Court noted, 

We do not of course suggest that a party may 

be relieved from the obligation to comply 

with an injunction simply by making a 

motion for a modification. But here the 

District claimed that it could not comply, 

despite making a good faith effort to do so. 

If true, this should have relieved it from 

liability. See Tinsley v. Mitchell, 804 F.2d 

1254, 1256 (D.C. Cir. 1986) (‘‘If a party lacks 

the financial ability to comply with an order, 

the court cannot hold him in contempt for 

failing to obey.’’) 

Id. at 1299. Finding that the district 

court based its order on irrelevant 

information regarding the District’s 

financial circumstances, the Court 

reversed and remanded for further 

proceedings. Id. 

The Courts have also recognized that 

a party may avoid compliance with a 

court order by showing that it made a 

good-faith effort to comply but fell 

short, and that under these 

circumstances, the party is not required 

to demonstrate that compliance is 

absolutely impossible. In Washington 

Metropolitan Transit Authority v. 

Amalgamated Transit Union, 531 F.2d 

617 (D.C. Cir. 1976), the D.C. Circuit 

vacated a final contempt judgment and 


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fine against a labor union for continuing 

to strike in contravention of a 

restraining order; among other 

procedural failings, the district court 

made no findings of fact on the union’s 

defenses of substantial compliance and 

inability to comply. Id. at 619–20. In 

directing the district court to provide 

adequate due process on remand, the 

court emphasized, ‘‘[e]valuation of good 

faith efforts to comply, once raised, is 

necessary to determine the possibility of 

compliance. In our view good faith 

should also be considered in mitigation 

of penalty.’’ Id. at 621 (citation omitted). 

This aspect of the doctrine is also 

fully applicable to agencies. In Chairs v. 

Burgess, 143 F.3d 1432 (11th Cir. 1998), 

the Eleventh Circuit emphasized that 

good-faith compliance efforts by a State 

agency could support a claim for relief 

based on impossibility. There, the State 

of Alabama was required under a 

consent decree to remove State 

prisoners from a county jail within a 

certain timeframe. Id. at 1434. The 

county sought a court order to enforce 

the decree and requested that the Court 

hold the State in contempt. Id. In light 

of the fact that the State was then 

subject to 79 identical court orders, the 

Court accepted the State’s defense of 

present inability to comply due to 

‘‘entirely inadequate’’ resources in the 

State prison system. Id. at 1437. The 

Court vacated the district court’s order, 

declaring: ‘‘ ‘Inability,’ as a defense to 

contempt, does not mean that 

compliance must be totally impossible. 

Instead, the inability that will absolve a 

party from being held in contempt 

requires only that the noncomplying 

party has made ‘in good faith all 

reasonable efforts to comply’ with the 

terms of a court order.’’ Id. (citations 

omitted). 

3. Step-by-Step Process for 

Implementing the Administrative 

Necessity Doctrine 

We believe that the administrative 

necessity case law establishes a threestep process under which an 

administrative agency may, under the 

appropriate circumstances, in effect 

revise statutory requirements that the 

agency demonstrates are impossible to 

administer so that they are 

administrable. This section of the 

preamble describes the requirements for 

each step, along with a brief application 

of each step to PSD permitting 

thresholds and significance levels as 

well as title V permitting thresholds. 

In brief, the three steps are as follows: 

When an agency has identified what it 

believes may be insurmountable 

burdens in administering a statutory 

requirement, the first step the agency 

must take is to evaluate how it could 

streamline administration as much as 

possible, while remaining within the 

confines of the statutory requirements. 

The second step is that the agency must 

determine whether it can justifiably 

conclude that even after whatever 

streamlining of administration of 

statutory requirements (consistent with 

those statutory requirements) it 

conducts, the remaining administrative 

tasks are impossible for the agency 

because they are beyond its resources, 

e.g., beyond the capacities of its 

personnel and funding. If the agency 

concludes with justification that it 

would be impossible to administer the 

statutory requirements, as streamlined, 

then the agency may take the third step, 

which is to phase in or otherwise adjust 

the requirements so that they are 

administrable. However, the agency 

must do so in a manner that is as refined 

as possible so that the agency may 

continue to implement as fully as 

possible Congressional intent. 

Step 1: Reduce administrative 

burdens by streamlining administration 

as much as legally permissible. When an 

agency has identified what it believes 

may be insurmountable burdens in 

administering a statutory requirement, 

the agency must first evaluate how it 

could streamline administration as 

much as possible, while remaining 

within the confines of the statutory 

requirements. Sierra Club, 719 F.2d at 

463 (even if EPA’s claims that its 

method for enforcement ‘‘is in fact 

impossible, there nevertheless may be 

less taxing ways to enforce the law’’); 

Alabama Power, 636 F.2d at 358 

(‘‘Courts frequently uphold streamlined 

agency approaches or procedures where 

the conventional course, typically caseby-case determinations, would, as a 

practical matter, prevent the agency 

from carrying out the mission assigned 

to it by Congress’’). 

As discussed in detail below, EPA 

believes that it may have several 

potentially useful tools available in the 

streamlining toolbox for the PSD 

permitting threshold level, the PSD 

significance level, and the title V 

permitting threshold. For the PSD 

permitting threshold level and 

significance level, there are at least three 

such tools: The first is interpreting the 

definition of ‘‘potential to emit’’ so that 

the amount of a source’s emissions that 

counts in determining whether it 

qualifies as a major source and therefore 

is above the permitting threshold 

requirements is closer to the amount of 

its emissions when it is in actual 

operation, rather than the amount of 

emissions that the source would emit if 

it were operating continuously. 

Narrowing the definition of PTE is a 

potentially extremely important tool in 

this context because identifying the 

amount of a source’s emissions as closer 

to its actual emissions in this manner 

would mean that very large numbers of 

residential and commercial sources 

would have significantly lower 

emissions and would fall below the 

statutory threshold requirements for 

triggering PSD. Second, EPA believes it 

may be able to develop programs 

involving general permits, under which 

large numbers of similarly situated 

sources would each be covered by 

essentially the same permit established 

through a regulatory action by the 

permitting authority. This approach 

could achieve economies of scale and 

thereby reduce administrative burden. 

Third, EPA believes it may be able to 

streamline the single most timeconsuming element of the PSD permit 

program, which is the determination of 

BACT as required under CAA 

§ 165(a)(4), by establishing presumptive 

BACT levels for certain source 

categories that comprise large numbers 

of sources. As for title V, as discussed 

below in detail, EPA believes that 

defining ‘‘potential to emit’’ to reflect 

more closely a source’s actual operation 

and developing a program of general 

permits could streamline the 

administration of title V permits. 

As also discussed below, these 

streamlining efforts cannot be 

implemented as soon as PSD and title V 

are triggered, or even shortly thereafter. 

However, EPA intends to develop these 

streamlining methods as vigorously and 

as quickly as possible and phase them 

into the program. These streamlining 

methods were described in the ANPR 

and EPA received comment on them, 

and EPA is continuing to develop the 

methods and to solicit further comment 

with this action. 

Step 2: Determine that the task that 

remains is impossible to administer. 

The agency must determine whether it 

can justifiably conclude that even after 

whatever streamlining of administration 

of statutory requirements the agency is 

able to effectuate, the agency’s 

remaining administrative tasks are 

impossible for the agency because they 

are beyond its resources. To make this 

determination, the agency must 

consider: (1) When it can complete 

streamlining administration of the 

statutory requirements and how well it 

can administer those requirements in 

the meantime; and (2) what 

administrative tasks would remain after 

it achieves streamlining and how well it 

can handle those tasks. To make this 

latter determination, the agency must 

compare its resources to the tasks at 


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hand. The agency must then determine 

whether it can administer the statutory 

requirements as mandated by Congress, 

or whether it may justifiably conclude 

that those requirements remain 

impossible to administer. 

As discussed below, PSD and title V 

requirements will become applicable to 

very large numbers of sources 

immediately following a final rule 

regulating GHG emissions. EPA expects 

to complete such a rule, establishing 

emissions limits for motor vehicles, by 

the end of March 2010. 

As discussed below, although EPA 

intends to aggressively develop 

streamlining methods to the extent 

feasible, EPA simply does not have time 

to do so prior to the date that we expect 

PSD and title V to become applicable. 

As a result, EPA and the States will 

have to implement PSD for those 

sources as soon as PSD is triggered. 

Preliminary information that we have 

obtained concerning State permitting 

authority resources, and data we 

collected concerning the numbers of 

sources that emit GHGs (using both a 

CO2 and CO2e basis) at the 100- and 

250-tpy levels, make clear that as of the 

date that PSD and title V applicability 

is triggered, the number of sources 

needing permits would overwhelm 

permitting authorities and thereby 

effectively paralyze the permitting. 

Specifically, the total number of PSD 

permits that are issued in the U.S. is 

approximately 280 per year. A 

permitting authority’s action on each 

PSD permit is resource-intensive 

because for each permit, the authority 

must apply source-specific BACT, apply 

other source-specific requirements, and 

allow public comment. However, EPA 

estimates that when the PSD 

requirements are triggered for sources of 

GHGs, more than 40,000 PSD permits 

both from newly constructed facilities 

that emit at greater than 250 tpy (using 

either a CO2 or CO2e metric) and from 

modifications at existing major sources 

will be required. Under the PSD 

program as presently constituted, 

permitting authorities’ actions on each 

of these permits will be resourceintensive, as described above. 

This volume of permitting represents 

more than a 140-fold increase from the 

current volume—again, approximately 

280 permits per year—of major PSD 

permits that are processed by permitting 

authorities nationwide. We estimate that 

this increase in volume of PSD permits 

would require an annual increase in 

labor hours of almost 44 times the 

current labor allocation for PSD 

programs. This increase in workload 

would overwhelm the permitting 

authorities’ resources and paralyze the 

permit issuance process. 

The problem for title V purposes is 

comparable. Specifically, the total 

number of existing title V permits in the 

U.S. is approximately 14,700. However, 

EPA estimates that when the title V 

requirements are triggered for sources of 

GHGs, approximately 6.1 million 

sources that emit at least 100 tpy (using 

either a CO2 or CO2e metric) will be 

required to obtain a title V permit. 

These sources will be required to submit 

a permit application within 1 year, and 

the permitting authorities will be 

required to act on those applications, 

including allowing an opportunity for a 

public hearing. 

We estimate that this additional 

volume of permitting would require an 

annual increase in labor hours of almost 

250 times the current labor allocation 

for title V programs. Like the increase in 

PSD workload, this increase in title V 

workload, combined with the source-bysource nature of the permitting process 

and the requirements for public input, 

would overwhelm the permitting 

authorities’ resources and paralyze the 

permit issuance process. 

For both PSD and title V permits, 

permitting authorities would be 

required to hire and train staff in 

numbers that are multiples of their 

current staff, a task that cannot be 

accomplished—or, indeed, can barely be 

begun—by the time PSD and title V 

requirements become applicable to GHG 

emitters. 

Step 3: Implement a scheme that is 

administrable, but in doing so, depart 

from the statute as little as possible. 

If the EPA concludes with 

justification that it would be impossible 

to administer the statutory 

requirements, as streamlined, then the 

agency may phase in or otherwise adjust 

the requirements so that they are 

administrable. However, the agency 

must do so in a manner that is as refined 

as possible so that the agency may 

continue to implement as fully as 

possible congressional intent. 

In this tailoring rulemaking, EPA is 

proposing, as the first phase, to establish 

a temporary ‘‘major stationary source’’ 

threshold for PSD purposes, a temporary 

‘‘significance level’’ threshold for PSD 

purposes, and a temporary ‘‘major 

source’’ threshold for title V purposes, 

for sources that emit GHGs, to levels 

that capture a significant share of GHG 

emissions while rendering both 

permitting programs administratively 

feasible. The specific options proposed 

for temporary thresholds and the 

rationale for their selection are 

described below. 

Moreover, and as explained in detail 

below, EPA intends to proceed 

aggressively to develop streamlining 

methods, and it is possible that 

permitting authorities will be able to 

augment their permitting resources. 

Even so, available information does not 

confirm that EPA and the permitting 

authorities will be able to rely on these 

steps within 6 years after PSD and title 

V requirements become applicable to 

GHG emissions. Accordingly, it is 

necessary to maintain the major 

stationary source threshold and 

significance level proposed and also 

necessary to reassess the administrative 

situation and conduct further 

rulemaking to address it within 6 years. 

5. Consistency With Case Law 

EPA’s proposed application of the 

administrative necessity doctrine to 

phase in the major source permitting 

thresholds for PSD and title V purposes, 

and to establish the significance level 

for PSD purposes, is consistent with the 

case law. 

It is clear under the D.C. Circuit case 

law that the administrative necessity 

doctrine is available under certain 

circumstances, to authorize an agency to 

‘‘depart from the requirements of a 

regulatory statute.’’ EDF v. EPA, 636 

F.2d at 1283 (citing Alabama Power). 

Thus, it is clear that the doctrine may 

be applied—under the appropriate 

circumstances—to authorize EPA to 

phase in the major source thresholds for 

PSD and title V permitting as well as to 

establish a PSD significance level. 

Indeed, the D.C. Circuit established the 

administrative necessity doctrine, in 

Alabama Power, in the context of efforts 

by EPA to establish thresholds for PSD 

permitting of new and existing sources. 

Alabama Power, 636 F.2d at 357, 400. 

The D.C. Circuit has emphasized, 

however, that the agencies have a high 

threshold to justify the use of the 

doctrine, EDF v. EPA, 636 F.2d at 1283, 

and the Court did not uphold the 

attempts by the agencies in those cases 

to invoke the doctrine. EDF v. EPA, 636 

F.2d at 1283; Sierra Club v. EPA, 719 

F.2d at 463; Public Citizen v. FTC, 869 

F.2d at 1556. 

We believe that the facts here are 

much more supportive of an 

administrative necessity application 

than in those cases. EPA’s application of 

the administrative necessity doctrine 

hews closely to the three-step process 

that we read the case law to establish. 

Step 1: Reduce administrative 

burdens by streamlining administration 

as much as legally permissible. In some 

of the case law described above, the D.C. 

Circuit emphasized that the agencies 

had failed to consider means of solving 


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22 In Public Citizen v. FTC, the D.C. Circuit 

dismissed FTC’s claims of administrative necessity 

where the agency’s rationale for its categorical 

exemption appeared to rely on an impermissible 

weighing of the relative costs and benefits of 

compliance, rather than on the impossibility of 

compliance. Public Citizen, 869 F.2d at 1556. 

their alleged administrative problems in 

ways consistent with the statutory 

requirements. In Sierra Club v. EPA, the 

Court invalidated EPA’s effort to narrow 

the definition of ‘‘dispersion 

techniques’’ to only certain types of 

equipment and thereby exempt from the 

definition certain categories of methods 

that were intended to disperse 

emissions. The Court based its holding 

in part on the grounds that EPA had 

failed to explore available, ‘‘less taxing’’ 

regulatory alternatives that would 

reduce the administrative burden of 

determining the purpose of changes in 

stack or plume parameters. Sierra Club 

v. EPA, 719 F.2d at 463–64. The Court 

offered examples of possible 

streamlining measures, such as 

quantifying the amount of plume rise 

that could be presumed to have an 

engineering rationale, or selectively 

exempting classes of improvements that 

have a trivial impact on the goals of the 

CAA or for which use as a dispersion 

technique was only theoretically 

possible. Id. at 464. Stating that ‘‘[w]e 

see no evidence that EPA has 

adequately explored these regulatory 

alternatives,’’ the Court overturned 

EPA’s effective categorical exemption. 

Id. 

The Court used similar reasoning in 

EDF v. EPA, where the Court found that 

EPA’s proposed 50-ppm cutoff for 

regulating PCBs was not 

administratively necessary. EDF v. EPA, 

636 F.2d at 155. There, although basing 

its dismissal of the claim primarily on 

EPA’s failure to make a prima facie 

showing of impossibility, the Court 

emphasized that statutorily authorized 

alternatives were available to EPA. See 

id. at 154–156. ‘‘While some cutoff may 

be appropriate,’’ the Court noted, ‘‘the 

Administrator did not explain why the 

regulation could not be designed 

expressly to exclude ambient sources, 

thus directly fulfilling congressional 

intent, rather than achieve that goal 

indirectly with a cutoff, thereby partly 

contravening congressional intent.’’ Id. 

at 154. 

Here, in contrast, EPA has begun the 

process of narrowing the administrative 

burden through means consistent with 

the statutory requirements by evaluating 

what streamlining approaches would be 

feasible but, as discussed below, this 

process is complex and EPA cannot 

complete it for several years. EPA is 

soliciting comment on those methods 

and any others that may occur to 

stakeholders or the public. In NRDC v. 

Train, the Court indicated that an 

agency’s diligent, good-faith efforts to 

discharge its statutory responsibilities 

will factor in favor of the Court’s 

resolution of an impossibility claim. 

NRDC v. Train, 510 F.2d at 333. 

Step 2: Determine that the task that 

remains is impossible to administer. In 

Alabama Power, the D.C. Circuit 

described the administrative necessity 

doctrine as rooted in agency workload 

and resources: Specifically, the Court 

stated that the administrative 

impossibility doctrine would apply 

based on the ‘‘administrative need to 

adjust to available resources * * * 

where the constraint was imposed 

* * * by a shortage of funds * * *, by 

a shortage of time, or of the technical 

personnel needed to administer a 

program.’’ 636 F.2d at 358. The Court 

added that another administrative 

constraint could be ‘‘the degree of 

administrative burden posed by 

enforcement.’’ Id. at 405. However, the 

Court cautioned that ‘‘the agency [bears] 

a heavy burden to demonstrate the 

existence of an impossibility.’’ Id. at 

359. 

In several of the cases described 

above, the D.C. Circuit emphasized that 

the agencies had failed to meet their 

heavy burdens of establishing 

administrative impossibility. In NRDC 

v. Train, EPA neglected to specify the 

resource or methodological constraints 

that prevented the agency from meeting 

a mandatory deadline for promulgating 

effluent limitation guidelines. NRDC v. 

Train, 510 F.2d at 712–13. Although the 

Court inferred from the imminent 

deadline that the Agency would likely 

experience a burden on its resources in 

promulgating the guidelines for most 

source categories, the Court was 

reluctant to grant EPA an extension in 

response to a merely conclusory 

statement that compliance with the 

deadline would be impossible. Id. at 

713. 

A few years later, in EDF v. EPA, the 

Court based its dismissal of EPA’s 

administrative necessity claim on the 

fact that the Agency did not provide 

sufficient data to support the claim that 

administering the statute as written was 

impossible. In that case, EPA failed to 

provide information relating to the 

amount of PCBs that would be left 

unregulated by its use of a 50-ppm 

cutoff, where the statute required ‘‘any’’ 

PCB to be prohibited. EDF v. EPA, 636 

F.2d at 155. As a result, EPA could not 

show that carrying out the statutory 

requirements for concentrations of PCBs 

below 50 ppm would be 

administratively impossible. Id. ‘‘Thus,’’ 

the Court found, ‘‘administrative need, 

on this record, provides no basis for the 

fifty ppm cutoff.’’ Id. Furthermore, the 

Court noted in a footnote that EPA’s 

claim that the burden to industry 

justified a categorical exemption was 

undermined by EPA’s lack of ‘‘firm 

data’’ on the extent of the burden. Id. at 

155, fn. 43. 

Likewise, in Sierra Club v. EPA, EPA 

alleged only that it would be ‘‘difficult’’ 

to administer a proposed subjective 

intent test that would examine whether 

dispersion techniques were used for the 

prohibited purpose of achieving 

compliance with emissions limitations. 

Without more, the Court determined, 

EPA’s showing fell ‘‘far short’’ of 

meeting the heavy burden of 

demonstrating the existence of an 

impossibility. Sierra Club v. EPA, 719 

F.2d at 461–62.22

Thus, in the cases concerning 

administrative necessity, the agencies 

generally did not attempt to quantify the 

administrative workload and resource 

constraints that they thought merited 

departure from the statutory 

requirements and instead limited 

themselves to generally conclusory 

assertions. In NRDC v. Train, the Court 

recognized that EPA could cure its 

insufficient record and demonstrate the 

administrative impossibility of 

complying with the deadline once it 

specified the actual burden on its 

resources. NRDC v. Train, 510 F.2d at 

713. In the event that EPA could 

demonstrate that ‘‘manpower or 

methodological constraints’’ threatened 

to delay the promulgation of guidelines 

for particular categories of sources, the 

Court held open the possibility of an 

exemption from the deadline. Id. at 714. 

Here, in sharp contrast to that case 

law, EPA has developed specific factual 

evidence concerning the administrative 

difficulties of implementing PSD and 

title V at the statutory threshold levels. 

Moreover, those constraints are 

compelling; it is clear from just the 

evidence collected so far that at the time 

that EPA expects to trigger application 

of the PSD and title V programs to 

sources that emit GHGs—which, if 

based on a possible mobile source final 

rulemaking, would be near the end of 

March 2010—it will be flatly impossible 

for permitting authorities to administer 

the PSD and title V programs at the 

statutory threshold levels. The massive 

number of permits would overwhelm 

the limited resources available to the 

permitting authorities. EPA expects to 

collect as much specific information 

concerning administrability as possible 

through the comment period. 


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The administrative burdens that EPA 

confronts in administering the PSD and 

title V thresholds have no precedent in 

the case law. The closest situation 

appears to be Alabama Power, where 

the Court rejected EPA’s interpretation 

of ‘‘potential to emit’’ as a matter of 

legal interpretation, and not on 

administrative necessity grounds, but 

where the Court noted that EPA’s 

interpretation would have brought 

approximately 2,400 additional facilities 

into the PSD program, which entailed 

the case-by-case review and BACT 

determination for each permit 

application. Alabama Power, 636 F.2d 

at 356. Even so, the PSD and title V 

program burdens anticipated for GHG 

emitters at the statutory thresholds are 

exponentially greater than the burdens 

alleged in Alabama Power. The 

projected resource burden for 

administering the PSD program alone 

will be greater than 10-fold the burden 

alleged in Alabama Power: Each year, 

regulating GHGs under the CAA is 

estimated to trigger PSD requirements 

for approximately 41,000 sources that 

emit at levels greater than the 100/250- 

tpy threshold when they engage in new 

construction or significant 

modifications. As for title V, in total, 

some six million permits would be 

required, which would entail an 

enormous expenditure of administrative 

resources, as described elsewhere. 

It should be acknowledged that the 

D.C. Circuit has stated that the 

administrative necessity doctrine is 

particularly difficult to assert when the 

agency had not yet tried to enforce the 

statutory requirements. Sierra Club v. 

EPA, 719 F.2d at 463. Although the 

Court did not spell out its reasoning for 

this distinction, a logical reason would 

be that actual efforts to implement the 

statutory provision would more clearly 

establish the extent of the 

administrative problems than would 

advance predictions. Even so, the Court 

left the door open to approving claims 

of administrative necessity in advance 

of actual implementation efforts. Here, 

EPA does not propose to attempt to 

administer the statutory thresholds once 

PSD and title V requirements are 

triggered for GHG emitters, but the 

impact of the statutory thresholds on 

permitting authority caseloads and 

resources are so massive as to be 

predictable with a sufficient degree of 

accuracy to support a claim of 

administrative necessity. EPA has 

gathered a substantial amount of 

evidence concerning those impacts and 

intends to gather more through the 

comment period on this notice. Under 

these circumstances, it is not necessary 

to await actual implementation. 

Attempting to do so—that is, allowing 

the statutory thresholds to apply, 

assessing the extent of the 

administrative problem, and then 

conducting rulemaking to raise the 

thresholds—would leave the PSD and 

title permitting process in disarray for 

years. 

Step 3: Phase-in the statutory 

requirements to be administrable, but in 

doing so, depart from the statute as little 

as possible. In Alabama Power, the D.C. 

Circuit listed the types of departures 

from the statute that it would sanction, 

under the appropriate circumstances, on 

grounds of administrative necessity. 

One is ‘‘[c]ategorical exemptions from 

the clear commands of a regulatory 

statute,’’ which the Court stated are 

‘‘sometimes permitted,’’ but ‘‘are not 

favored.’’ A second is an 

‘‘administrative approach,’’ such as 

‘‘streamlined agency * * * procedures’’ 

in lieu of, for example, case-by-case 

determinations, and a third is a delay of 

deadlines. 636 F.2d at 358. 

Here, turning first to PSD, EPA is 

proposing to phase in the threshold for 

PSD permitting, which would have the 

effect of allowing sources that are above 

the statutory threshold of 100/250 tpy 

but below the regulatory threshold of 

25,000 tpy CO2e to build new facilities 

or modify existing ones without being 

subject to PSD. Thus, this proposal is a 

type of exemption. 

Although the Court has said that 

‘‘categorical exemptions’’ are ‘‘not 

favored,’’ the Court has indicated that 

they are ‘‘sometimes permitted,’’ and 

the exemption at issue here is one that 

should be permitted. For one thing, it is 

time limited. In addition, during phase 

one of the phase-in period, establishing 

the thresholds at 25,000 tpy CO2e and 

[10,000 to 25,000] tpy CO2e, and thereby 

exempting sources from PSD 

applicability at the time that they 

construct or modify, is the only way to 

address the administrative burdens that 

would otherwise result at the time that 

PSD is triggered. At that time, EPA will 

not have been able to develop any 

streamlining methods, which is the 

second type of relief that the D.C. 

Circuit identified in Alabama Power. 

Even so, this proposal is that, as quickly 

as possible, during the next 6 years, EPA 

will implement as extensive a 

streamlining of PSD requirements as 

possible (consistent with statutory 

requirements) and then will reassess the 

administrative burdens and conduct 

additional rulemaking concerning the 

thresholds and streamlining techniques. 

This approach has the potential to limit 

the extent of the exemption. It should be 

noted that a deferral of the permitting 

obligation, which is the third type of 

relief that the D.C. Circuit identified, 

would not be useful. For PSD purposes, 

because sources cannot construct or 

modify without first obtaining a permit, 

a deferral would prevent construction 

and modification activities. In addition, 

a deferral would simply create a backlog 

that would quickly become 

unmanageable at any foreseeable point 

in the future and would create 

unacceptable uncertainty for the 

regulated community. In particular, 

because sources cannot construct or 

modify without first obtaining a permit, 

the backlog would prevent construction 

and modification activities. 

As discussed elsewhere, for PSD 

purposes, the 25,000-tpy and [10,000 to 

25,000] tpy CO2e levels proposed for the 

major source permitting threshold and 

significance level, respectively, are the 

lowest levels that we believe permitting 

authorities will be able to administer for 

the upcoming 6-year period. By the end 

of the first 5 years, EPA will conduct a 

study and, within the following year, 

will conduct another rulemaking to 

revisit and possibly revise those 

thresholds, depending on the Agency’s 

findings of the maximum extent to 

which permitting authorities can 

administer the statutory program. In this 

manner, the levels proposed are the 

least possible departure from the 

statutory requirements. 

For the title V purposes, the first 

phase threshold level of 25,000 tpy 

CO2e must also be considered to be the 

narrowest possible departure from the 

statutory requirements because it is the 

lowest amount that is administrable and 

because there are no other choices. 

There is not enough time for EPA to 

develop streamlining measures or for 

the States to ramp up resources. 

Although sources have 1 year to submit 

permit applications, and, once they 

submit them, they receive the 

protections of the permit shield, failure 

to phase in the threshold level would 

leave permitting authorities confronting 

an influx of millions of permit 

applications that would begin within a 

year. Little can be done during that year 

to meaningfully streamline the program. 

In addition, for title V purposes, the 

first-phase threshold must be 

considered a deferral of, and not an 

exemption from, permitting obligations 

because existing sources must apply 

periodically for a title V permit. That is, 

if, during the second-phase rulemaking, 

EPA lowers the threshold, sources that 

are able to avoid title V permitting 

obligations under the first phase may be 

required to obtain a title V permit. 


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C. Step-by-Step Process 

In addition to the ‘‘absurd results’’ 

and ‘‘administrative necessity’’ case 

law, a separate line of cases may be 

relevant for this action: Cases that have 

held that agencies may approach 

problems one step at a time. In these 

cases, the Courts have dismissed 

challenges to agency actions that 

implement part of, but not the entirety 

of, a statutory mandate, on grounds that 

agencies may proceed in an incremental 

fashion. In these cases, the Courts 

emphasized that the agency’s partial 

action was a step in an overall path 

toward achieving full implementation of 

the statutory mandate. We solicit 

comment on whether this caselaw is 

supportive of our action in this notice. 

In Massachusetts v. EPA, 549 US 497, 

524 (2007), the U.S. Supreme Court, in 

holding that EPA has authority under 

the Clean Air Act to regulate GHG 

emissions, noted that ‘‘[a]gencies, like 

legislatures, do not generally resolve 

massive problems in one fell regulatory 

swoop.’’ Instead, they may permissibly 

implement such regulatory programs 

over time, ‘‘refining their preferred 

approach as circumstances change and 

as they develop a more nuanced 

understanding of how best to proceed.’’ 

The D.C. Circuit, in Grand Canyon Air 

Tour Coalition v. FAA, 154 F.3d 455, 

477–78 (DC Cir 1998), considered a 

challenge to the Federal Aviation 

Administration’s (‘‘FAA’’) final rule for 

reduction of aircraft noise from 

sightseeing tours in Grand Canyon 

National Park. There, the 1987 

Overflights Act required the FAA to 

develop a plan within 120 days for 

limiting aircraft overflights in order to 

achieve substantial restoration of 

natural quiet. The Overflights Act 

further required that the FAA 

implement the plan by regulation; and 

then, within 2 years after the date of the 

plan, submit to Congress a report 

discussing whether the plan had met the 

statutory goals or whether revisions to 

the plan were needed. The FAA did 

issue a final rule—the one that was 

challenged—but did not do so until 10 

years after enactment, and that rule 

required only partial action for limiting 

overflights. At the same time that it 

issued the rule, the FAA proposed two 

additional rules, and stated that the set 

of three rules together would achieve 

substantial restoration of natural quiet 

in another 10 years. The Court upheld 

the final rule and declined to compel 

the FAA to take additional action on a 

faster time frame. The Court explained: 

We agree that it would be arbitrary and 

capricious for an agency simply to thumb its 

nose at Congress and say—without any 

explanation—that it simply does not intend 

to achieve a congressional goal on any 

timetable at all. * * * But the FAA has not 

taken that course here. It has never defended 

the Final Rule as the sole means for restoring 

the natural quiet, but only as the first of three 

steps. Its contemplation was that the three 

rules together would achieve that goal 

[within 10 additional years]. 

Id. 

Similarly, in City of Las Vegas v. 

Nevada Dev. Comm’n, 891 F.2d 927, 

935 (DC Cir 1989), the Court upheld the 

Department of Interior’s emergency 

regulation listing as endangered species 

the tortoise population in the Nevada 

portion of the Mojave Desert, even 

though the regulation excluded the 

population in the Sonoran portion. The 

Court found that ‘‘agencies have great 

discretion to treat a problem partially,’’ 

and held that it would not strike down 

agency action ‘‘if it were a first step 

toward a complete solution.’’ 

In these cases, the agencies were 

required to implement a statutory 

directive through rulemaking. The D.C. 

Circuit upheld partial action by the 

agencies when the Court considered it 

to be an initial step towards meeting the 

directive. This action is set in a 

somewhat different context. The 

statutory provisions at issue here—the 

PSD and Title V applicability thresholds 

—provide that when GHG requirements 

are triggered, GHG emitters must obtain 

permits. When the triggering event 

occurs, the agency need take no further 

action before regulatory consequences 

ensue; sources included within the PSD 

and Title V programs must obtain 

permits once these statutory provisions 

are triggered. However, as we have 

described, if sources are required to 

apply for permits in accordance with 

the literal requirements of the statute, 

the permitting authorities would not 

have the resources to process those 

permits, and severe adverse results 

would occur. This action would 

ameliorate that situation by establishing 

a process for compliance with the 

statutory requirements. As discussed 

elsewhere, this process consists of a first 

phase that entails establishing the 

applicability thresholds at the specified 

levels, developing methodologies for 

general permits and other streamlining 

approaches, collecting data, preparing 

an assessment, and then promulgating 

rulemaking for further action. This 

process would allow us to craft the 

application of PSD and title V in ways 

that are achievable and effectively 

balance the regulatory burdens with the 

reductions achievable. In this sense, this 

action bears similarity to the agency 

actions upheld by the D.C. Circuit as 

partial steps. 

We solicit comment on whether this 

line of cases is relevant for our action in 

this notice. 

In particular, we solicit comment on 

whether an approach that includes stepdowns in the applicability thresholds, 

coupled with regular examination of 

whether the administrative situation is 

improving, is an appropriate way to 

achieve compliance while taking into 

account the administrative imperatives. 

If so, we ask for suggestions on how we 

could structure such an approach (e.g., 

when future phases should begin, how 

we should determine the appropriate 

thresholds for each phase, etc.) In 

addition, we solicit comment on the 

level of detail with which we would be 

required to identify our path towards 

facilitating full administration of the 

PSD and title V applicability 

requirements in order for the Court to 

uphold our initial steps under this case 

law. We also solicit comment on 

whether this proposal establishes such a 

path with sufficient detail and, if not, 

what further actions we should include 

in the final rulemaking or commit to 

undertake in subsequent rulemaking. 

D. What were the ANPR comments 

received on GHG tailoring options for 

regulating GHG emissions under PSD 

and title V? 

Responses to the ANPR give us some 

perspective of the initial views of some 

of the permitting authorities, sources, 

and the public on permit GHG tailoring 

options. Many of the ANPR 

commenters, including representatives 

from States, environmental groups and 

industry, recommended that EPA limit 

permitting, at least initially, to higheremitting sources. While there were few 

recommendations on specific permitting 

levels, suggestions ranged from 10,000 

to 100,000 tons per year CO2. A number 

of environmental groups stated that if 

the rationale for treating smaller sources 

differently relies on principles of 

administrative necessity, the cutoff 

point should relate to what is 

administratively feasible while 

maximizing the objectives of the CAA. 

Most industry stakeholders, 

representing a broad profile of affected 

sources, stated that title V and PSD 

applicability for sources of GHG 

emissions at current permitting 

thresholds would be economically 

disastrous and would create regulatory 

gridlock. Alternatively, some 

environmental groups opposed any 

temporary permitting thresholds, stating 

that EPA does not have legal authority 

to change thresholds to limit 

applicability. 

Some States and environmental 

groups recommended streamlining 


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through the use of general permits and 

presumptive BACT. This option was 

supported mostly by States, but one 

industry commenter also agreed that it 

was an alternative worth pursuing if 

EPA insisted on regulating GHG 

emissions under the current CAA. Some 

States noted that they have a successful 

history of using general permits and 

believe the use of general permits as 

well as presumptive BACT could be part 

of an effective and reasonable approach 

to reduce regulatory costs and 

administrative burdens. Other industry 

groups said that presumptive BACT and 

general permits are unaffordable and 

require too much negotiation, and EPA 

lacks authorization to use them. 

States and industry commenters 

acknowledged that it would take a 

significant amount of time to define 

presumptive BACT or general permits 

for different categories, although some 

States said that, over time, they have 

developed similar approaches to 

permitting with success for non-GHG 

gases for certain source categories. 

Industry commenters argued that the 

case-by-case review of permit 

applications that the NSR program 

requires is the epicenter of NSR, and 

that a one-size-fits-all approach will not 

mesh with the diversity of different 

manufacturing industries of all sizes. 

Furthermore, even with the use of these 

streamlining approaches, industry 

claims that there will still be tens of 

thousands of previously unregulated 

sources who would need to undergo 

PSD permitting. To review comments 

received on the ‘‘Regulating Greenhouse 

Gas Emissions Under the Clean Air Act’’ 

ANPR (73 FR 44354, July 30, 2008), see 

Docket ID No. EPA–HQ–OAR–2008– 

0318. 

VII. Streamlining Options and Tools To 

Address the Administrative Burdens of 

PSD and Title V for GHGs 

As noted in earlier sections of this 

preamble, we believe that the 

application of PSD and title V 

requirements to sources of GHG 

emissions at current statutory 

thresholds would be administratively 

impossible at the time that we expect 

PSD and title V requirements to be 

triggered for those sources, which we 

expect to be the end of March 2010. 

These requirements would also impose 

undue burdens on the sources. 

However, we recognize that there are 

several streamlining techniques with the 

potential to reduce over time the 

burdens on sources and the 

administrative burdens of the PSD and 

title V requirements. We have initially 

assessed the general availability and 

usefulness of the streamlining 

techniques that are consistent with the 

statutory requirements to address, 

manage and reduce the administrative 

burden on permitting authorities. In 

addition, if we are compelled to 

promulgate regulatory requirements that 

depart from the statutory requirements, 

we recognize that we must do so to the 

smallest extent possible and must 

remain as close as possible to 

congressional intent. Other of these 

streamlining techniques may depart 

from the statutory requirements, but 

they may be preferable to the extent that 

the departure is to a smaller degree than 

raising the applicability thresholds. 

However, as we will discuss below, 

we do not believe that we can develop 

and implement any of these 

streamlining techniques in the near term 

in the manner necessary to make the 

programs administrable at the statutory 

PSD and title V permitting thresholds. 

Accordingly, at this time, we cannot 

rely on these techniques in lieu of 

phasing in the applicability thresholds 

in the manner that we propose. 

However, we believe that these 

streamlining techniques should be an 

integral part of a strategy during the first 

phase of the phase-in period—which 

includes evaluating the threshold we 

propose to establish—to address and 

reduce the burden on permitting 

authorities. Thus, during the first phase, 

we plan to aggressively pursue further 

development of these techniques, and 

we plan to implement as many of them 

for as many source categories as 

possible and to do so as soon as 

possible. The reassessment and 

additional rulemaking that we propose 

to undertake at the end of the first phase 

will take into account the extent to 

which these streamlining techniques, as 

well as the permitting authorities’ 

ability to enhance their resources, 

promote administrability. Moreover, for 

smaller sources for which PSD and title 

V requirements would not apply due to 

the increase in the major source 

applicability thresholds, EPA will also 

assess and identify cost-effective 

opportunities available in this notice to 

achieve GHG reductions through means 

other than PSD (e.g., energy efficiency 

and other appropriate measures). 

In section VII.A of this preamble, we 

discuss streamlining techniques that 

either have been used or could 

potentially be used in the PSD and title 

V programs. Some techniques may have 

applications to both programs (e.g., 

general permits), while some are 

applicable to only one program (e.g., 

presumptive BACT for PSD). In sections 

VII.B and VII.C of this preamble, we 

describe the implementation of these 

techniques as they relate both to 

permitting GHG emitters under current 

PSD and title V permitting thresholds 

and to a broader GHG tailoring strategy 

that involves the applicability 

thresholds proposed with this action. 

We solicit comment on the permit 

streamlining approaches discussed in 

section VII.A of this preamble and also 

request information and comment on 

any other tools or options that could 

address or reduce the administrative 

burden of implementing PSD and title V 

for major GHG sources and reduce the 

burdens on the sources. 

A. Permit Streamlining Techniques for 

PSD and Title V 

We believe that a strategy to address 

the administrative burden associated 

with implementing the PSD and title V 

programs for sources of GHGs could 

include one or more of the following 

permit streamlining techniques or 

processes. 

1. Redefining ‘‘Potential to Emit’’ 

Both PSD and title V requirements 

apply to ‘‘major’’ sources, and ‘‘major’’ 

sources are defined as sources that emit, 

on a PTE basis, 100/250 tpy for PSD 

purposes and, in general, 100 tpy for 

title V purposes. PTE is basically 

defined as the maximum capacity of a 

source to emit any air pollutant under 

its physical and operational design, 

including legal limitations, if any, on, 

for example, emissions or hours of 

operation. Many source categories have 

no legal limits on their hours of 

operation and, as a result, are treated as 

if operating 24 hours per day, seven 

days per week—which totals 8,760 

hours per year—and emitting during 

that entire time. As a result, basing the 

applicability thresholds on PTE, rather 

than on actual emissions, has the effect 

of sweeping enormous numbers of 

additional sources into the PSD and title 

V programs. For example, sources that 

do not in fact operate for part of the 

year, but that have no legal limitation on 

their operating hours, must calculate 

their PTE on the basis of the amount of 

emissions that would result if those 

sources did operate, and therefore emit, 

on a year-round basis. 

However, sources in such situations 

may take legally and practically 

enforceable limits on their operational 

parameters, by, for example, agreeing to 

operate during only part of the year or 

during only a limited number of hours 

per day, or employing control devices. 

These limitations would lower the 

sources’ PTE and thereby allow them to 

avoid classification as ‘‘major.’’ PTE 

limits are already frequently used in 

PSD and title V permitting programs. 

There, the permitting authorities 


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typically apply PTE limits as a sourcespecific limit that is crafted in a 

facility’s minor source permit and 

tailored to the source’s individual 

circumstances. 

This approach of reducing PTE to 

more closely approximate a source’s 

actual emissions—and, in the case of 

smaller sources, thereby allowing the 

PTE to fall below the ‘‘major’’ source 

threshold that triggers PSD or title V 

applicability—offers promise to 

significantly reduce the number of 

sources subject to PSD and title V, and 

thereby significantly ease 

administrability of those programs once 

GHG emitters become subject to them. 

This approach may be particularly 

suitable to sources in certain categories 

of GHG-emitting, combustion-related, 

small sources that do not operate at 

anywhere close to the 8,760 possible 

hours over a given year that is generally 

assumed in the PTE calculation. These 

categories may include: Furnaces, 

which likely only operate during the 

winter season and parts of spring and 

fall; water heaters, which only combust 

fuel at periodic intervals necessary to 

maintain water temperature; and small 

stationary engines, which may operate 

only for limited and defined periods of 

time for certain businesses. 

The permitting authorities typically 

apply PTE limits as a source-specific 

limit that is crafted in a facility’s minor 

source permit and tailored to the 

source’s individual circumstances. 

However, creating PTE limits for very 

large numbers of GHG-emitting sources 

nationwide would require a more 

efficient approach than creating them 

through individual minor source 

permits, as permitting authorities have 

done to date. Otherwise, the sheer 

volume of permits and the process 

involved for each permit would 

themselves create administrative 

burdens that would be self-defeating. 

This could particularly be the case for 

the title V program, for which many 

sources may seek PTE limits as soon as 

the program becomes effective for GHG 

emitters, and as a result, permitting 

authorities would need to deal with a 

large number of sources at the same 

time. 

In lieu of individual minor source 

permitting, we intend to evaluate and to 

consider adopting, or encouraging State 

permitting authorities to adopt, rules for 

source categories that we expect to 

include large numbers of sources whose 

actual GHG emissions are well below 

major source thresholds but which, 

absent such rules, have PTE above those 

thresholds. 

There are several approaches through 

which EPA could take this action or 

encourage States to undertake similar 

actions. For certain source categories, it 

may be possible to define the source so 

that its PTE more closely tracks its 

actual emissions. To return to one of the 

examples provided earlier, it may be 

possible to define furnaces (which have 

the potential to operate year-round) to 

include the thermostats to which they 

are attached, which constrain them from 

operating in warmer weather. In this 

manner, the PTE of the furnacethermostat source would take into 

account the operational constraints, so 

that PTE would more closely 

approximate actual emissions. This type 

of rule would not constitute any legal 

constraint within which the source must 

comply; rather, it would define the 

source as including specified pieces of 

equipment that, in turn, incorporate 

operational constraints. 

For other source categories, it is 

conceivable that the only way to limit 

PTE would be to promulgate regulations 

that limit a source’s operation. These 

regulations are often referred to as 

‘‘prohibitory rules.’’ For example, the 

permitting agency could promulgate a 

regulation that would preclude certain 

sources from operating for more than a 

certain number of hours per year, while 

also providing a streamlined method to 

allow a source to operate for longer 

hours upon request to the permitting 

agency. 

We have some experience with 

developing and issuing guidance on 

PTE calculation methodologies through 

1990s guidance for States wishing to 

create PTE limits through prohibitory 

rules or other mechanisms for several 

categories that were subject to seasonal 

operational shutdowns or that did not 

operate at maximum capacity for each 

hour of each day, so that actual 

emissions were well below their 

unadjusted PTE. See the memorandum 

entitled ‘‘Potential to Emit (PTE) 

Guidance for Specific Source 

Categories,’’ from John S. Seitz, Director, 

OAQPS, OAR, EPA, to EPA Regions, 

April 13, 1998, found at EPA–HQ– 

OAR–2009–0517. These categories 

included grain elevators, industrial 

boilers, gas stations, emergency 

generators, printing operations, and 

cotton gins. The guidance document 

provided assumptions and calculations 

that States could use to develop 

prohibitory rules or other mechanisms 

to easily limit the PTE of sources in 

these categories. 

We envision a similar approach to 

establish PTE calculation methods for 

various categories of sources that emit 

GHGs. The following steps would need 

to occur for full development and 

implementation of such a program: 

Step 1: EPA identifies source 

categories that are generally conducive 

to this approach, considering the 

amount of their GHG emissions, 

complexity of operations, and emissions 

unit characteristics. 

Step 2: EPA collects data from the 

industry and individual sources on 

typical operations, including emissions 

unit and process parameters. 

Step 3: Acting through guidance or 

regulatory changes to the Federal PSD 

regulations, EPA develops PTE 

calculation methodologies and 

implementation procedures for the 

appropriate source categories. 

Step 4: EPA solicits comment from 

permitting authorities and affected 

sources on PTE calculation 

methodologies and implementation 

procedures. 

Step 5: EPA issues the final 

regulations or guidance. 

Step 6: Permitting authorities adopt 

revisions that incorporate EPA’s 

regulations or guidance. 

Step 7: Sources comply with any 

applicable legal limits. 

Based on our efforts in the 1990’s, we 

believe that it would take EPA 

approximately 1 year to issue guidance 

for a given source category. We believe 

many States would be able to 

immediately apply this guidance. Some 

States may need to adopt the guidance 

in their SIP, which EPA must then 

approve, a process that could take 

approximately 3 years. Finally, for those 

rules that would not be selfimplementing, sources would need time 

to meet the requirements of the rule. We 

ask for specific comment on 

stakeholders’ experience with limiting 

PTE by rule rather than through 

individual permits, considerations in 

phasing in this approach to GHG 

sources, and identification of categories 

that might benefit from the use of rules 

limiting PTE. 

2. Presumptive BACT 

CAA section 165(a)(4) requires that 

sources subject to PSD implement BACT 

for each pollutant subject to regulation 

under the Act, and CAA section 169(3) 

requires that BACT emissions limits be 

determined ‘‘on a case-by-case basis’’ 

that reflects the use of state-of-the-art 

demonstrated control technology at the 

time of the permit action. Thus, BACT 

is required to be source-specific, 

changes over time, and requires 

continual updating. The permitting 

authority’s decision as to what control 

requirements constitute BACT affords 

flexibility to consider a range of casespecific factors, such as available 

control options and collateral cost, 

energy, and environmental impacts. 


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23See Memorandum, ‘‘BACT and LAER for 

Emissions of Nitrogen Oxides and Volatile Organic 

Compounds at Tier 2/Gasoline Sulfur Refinery 

Projects,’’ from John S. Seitz, Director, Office of Air 

Quality Planning and Standards, to Regional Air 

Division Directors (January 19, 2001). 

24For example, Wyoming has a minor source 

permitting program that includes a BACT analysis, 

and they use a presumptive BACT process for 

issuing minor source permits to a particular source 

category—oil and gas production facilities. See 

Permitting Guidance for Oil and Gas Production 

Facilities, Wyoming Dept. of Environmental 

Quality, Air Quality Division (August 2007 

revision). 

However, full consideration of those 

factors requires significant data and 

analysis in order for permitting 

authorities to arrive at a case-by-case 

permitting decision that is appropriate 

for each individual source when it 

constructs or modifies. For all these 

reasons, determining BACT for a 

particular source can often be a 

complicated, resource-intensive, timeconsuming, and sometimes contentious 

process. If the number of required PSD 

permitting decisions increases 

significantly, these challenges will be 

magnified, and BACT determinations 

will be a major factor contributing to 

uncertainty and delay for sources 

seeking PSD permits. Furthermore, the 

increase in workload of BACT 

determinations will require large 

investments of resources by permitting 

authorities, sources, EPA, and the 

public interested in commenting on 

these decisions. 

In order to streamline the BACT 

process for the many new small sources 

that will be brought into the PSD 

program based on their GHG emissions, 

EPA will investigate ways to move from 

a system under which permitting 

authorities set BACT limits on an 

individual, case-by-case basis to a 

system under which they make BACT 

determinations for common types of 

equipment and sources, and apply those 

determinations to individual permits 

with little to no additional revision or 

analysis. The EPA has previously 

introduced this concept, known as 

‘‘presumptive BACT’’, to streamline 

permitting for desulfurization projects at 

refineries as well as in other instances,23

and some State permitting authorities 

have adopted similar approaches.24

Based on our understanding of the types 

of sources that will become subject to 

PSD if GHG emissions are regulated at 

the statutory 100/250-tpy threshold, we 

believe the presumptive BACT process 

could offer significant streamlining 

benefits. These benefits arise because 

many of the sources that would become 

subject to BACT will likely have very 

similar emissions producing equipment, 

and there will be little variation across 

sources with respect to the cost, energy, 

and environmental considerations in the 

BACT decision. 

The central component of a 

presumptive BACT approach would be 

the recurring technical determination, 

subject to notice and comment, of the 

presumptive BACT levels for various 

categories. Because of the limited data 

currently available about the number 

and types of sources that would become 

subject to the BACT requirement for 

GHGs, we cannot at this time predict 

how many or which categories might 

benefit from such an approach. We 

recognize that considerable work will be 

needed to determine what options exist 

for controlling GHG emissions from 

these categories of sources and the 

various types of emitting equipment 

they use. 

As noted above, the CAA requirement 

for BACT, found in sections 165(a)(4) 

and 169(3), mandate that BACT 

determinations be made for each 

pollutant on a ‘‘case-by-case basis.’’ 

Accordingly, we need to explore 

whether we can develop a process that 

benefits from the efficiencies that 

presumptive BACT would provide 

while also allowing for 

individualization of permits. A possible 

approach would be to develop, through 

notice-and-comment rulemaking, a 

presumptive BACT level for sources in 

a particular source category, but require 

that permitting authorities allow public 

comment on individual permits as to 

whether there are significant casespecific energy, economic, and/or 

environmental impacts that would 

require adjustment of the presumed 

limit for that particular source. This 

phase in approach could streamline the 

BACT determination process to some 

extent, although the prospect that 

presumptive BACT determinations 

would, as a result of public comment, 

still have to be reviewed for numerous 

individual sources could well negate 

those streamlining benefits. 

Accordingly, we believe that we also 

need to investigate a system under 

which presumptive BACT levels for a 

source category are developed through 

notice-and-comment rulemaking but 

applied to individual sources in that 

category without requiring permitting 

authorities to individualize the BACT 

determination or to allow for public 

comment on how presumptive BACT 

levels would apply to an individual 

source. The D.C. Circuit, in the Alabama 

Power case discussed above, stated that 

courts ‘‘frequently uphold streamlined 

agency [regulatory] approaches or 

procedures where the conventional 

course, typically case-by-case 

determinations, would, as a practical 

matter, prevent the agency from carrying 

out the mission assigned to it by 

Congress.’’ 636 F.2d at 358. The Court 

recognized that such streamlining 

measures may be needed when time or 

personnel constraints or other practical 

considerations ‘‘would make it 

impossible for the agency to carry out its 

mandate.’’ See id. at 359. Given the 

significant increase in new sources that 

would likely be brought into the PSD 

program once GHGs are regulated, 

maintaining individual case-by-case 

BACT determinations may well be 

impractical and may well warrant a 

presumptive BACT approach that does 

not authorize individualized, sourcespecific determinations. This approach 

could well be an important tool to allow 

EPA, State and local permitting 

authorities to carry out the PSD program 

in as timely and efficient manner as 

necessary to promote (rather than 

hinder) control of GHG emissions from 

the many new, small source categories 

that would be required to have PSD 

permits based on their GHG emissions. 

This approach would preserve 

opportunities for public participation by 

taking comment during the 

determination of presumptive BACT 

levels for a source category. Although 

this type of presumptive BACT 

approach—one that does not permit 

individualized, source-specific 

determinations—would depart from a 

literal application of the statutory 

requirements for BACT, it may 

nevertheless remain closer to the 

congressional intent for the PSD 

program than maintaining the 

applicability threshold at a level higher 

than the statutory level. If this is the 

case, then EPA could be required to 

establish a presumptive BACT approach 

and lower the applicability thresholds 

from the first phase level proposed in 

this action. 

Several other factors should be taken 

into account when considering a change 

from case-by-case BACT determinations 

to a presumptive BACT process for 

some specific source categories within 

the PSD program. As a general matter, 

we will need to consider how such 

presumptive BACT limits should be 

established and used, and what 

provisions in the CAA would set 

requirements or limits on their 

establishment and use. In particular, 

EPA recognizes the CAA section 169(3) 

requirement to set BACT limits after 

taking into account site-specific energy, 

economic, and environmental impacts 

(otherwise known as collateral impacts). 

In addition, while case-by-case BACT 

determinations allow for the continual 

evolution of BACT requirements over 

time (as controls applied in prior 


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permits are considered in each 

subsequent case-by-case BACT 

determination), EPA recognizes that 

application of presumptive BACT to a 

category of sources over many 

permitting decisions may diminish the 

technology forcing effects of PSD. EPA 

is interested in options that would help 

maintain advances in control 

technologies, such as a requirement to 

update and/or strengthen BACT at set 

intervals (such as after 3 years). 

EPA seeks comment on all aspects of 

the use of presumptive BACT limits 

within the PSD program, including 

EPA’s authority to do so, whether there 

is need for and value to such an 

approach, and suggestions for how such 

limits could be established, updated, 

and used consistently within the 

requirements of the CAA, or by 

departing as little as possible from those 

requirements. We also ask for comment 

on whether there are issues at 

traditional PSD major sources that arise 

for GHGs and that would not be 

addressed by a presumptive BACT 

approach. If so, we ask for comment on 

additional options for streamlining the 

BACT requirement to address these 

issues. 

3. General Permits and Permits-by-Rule 

A general permit is a permit that the 

permitting authority drafts one time, 

and then applies essentially identically 

(except for some source-specific 

identifying information) to each source 

of the appropriate type that requests 

coverage under the general permit. 

Congress expressly codified the concept 

of general permits when it enacted the 

title V program and States have been 

using general permits and similar 

processes for years in their own permit 

programs, particularly for minor source 

NSR and operating permits. Due to the 

case-by-case nature of PSD for 

‘‘traditional’’ major sources and the 

differences among individual PSD 

sources, there has not been much 

interest or activity in general permitting 

for the PSD program. However, we 

believe this approach merits strong 

consideration for both PSD and title V 

programs due to the large number and 

similar characteristics of many of the 

sources that EPA expects will become 

newly subject to these permitting 

programs because of their GHG 

emissions. 

A general permit provides a 

streamlined application and permitting 

process for sources that are similar in 

terms of operations, emissions units, 

and applicable requirements. By issuing 

a general permit, a permitting authority 

indicates that it approves the activities 

authorized by the general permit, 

provided that the owner or operator of 

the source registers with the permitting 

authority and meets the requirements of 

the general permit. 

Permit-by-rule provisions may be very 

similar to general permit provisions, but 

they typically authorize a source owner 

to operate in accordance with certain 

requirements provided that the source 

owner registers with the permitting 

authority or certifies that they are 

complying with all applicable 

requirements. Thus, a source subject to 

the permit-by-rule would not need to 

wait for permitting authority approval, 

as is the case with the general permit, 

prior to operating under a permit-byrule. 

General permits are attractive in their 

ability to dramatically reduce permitting 

timeframes for affected source types. At 

the same time, general permits are 

highly conducive to automation and the 

development of web-based applications. 

For example, New Jersey’s Department 

of Environmental Quality has fully 

automated its air general permitting 

process, allowing source owners to go 

online, apply for a general permit, build 

the permit themselves, issue it to 

themselves by printing it out, and pay 

for it by credit card. This type of onestop processing has the potential to 

dramatically streamline the air 

permitting process for source types 

covered by general permits, and the 

resulting electronic records create 

spillover benefits for compliance 

tracking, inspection management, and 

pollution prevention outreach. 

a. General Permits for the PSD Program 

EPA has limited experience in 

developing general permits and permitsby-rule under the PSD program due to 

the predominance of the case-by-case 

BACT decision process described in 

section VII.A.2 of this preamble. In 

considering the use of general permits 

within the PSD program, EPA is 

considering how such general permits 

should be established and used, and 

what provisions in the CAA might limit 

their establishment and use. One option 

is to model PSD general permits on the 

general permits used in title V, as 

provided in 40 CFR 70.6(d). However, 

an important consideration in 

establishing PSD general permits is the 

requirement in CAA § 165(a)(2) that 

permits be issued after ‘‘a public hearing 

has been held with opportunity for 

interested persons including 

representatives of the Administrator to 

appear and submit written or oral 

presentations.’’ One option for 

addressing this public participation 

requirement at least to some extent is 

the approach followed for title V general 

permits in 40 CFR 70.6(d), which 

provides that permitting authorities may 

establish general permits after following 

notice-and-comment procedures 

required under 40 CFR 70.7(h) and then 

grant a source’s request to operate under 

a general permit without repeating the 

public participation procedures. Other 

considerations for establishing general 

permits under the PSD program include 

the requirement to determine BACT on 

a case-by-case basis (as discussed in an 

earlier section of this preamble), and the 

other procedural requirements referred 

to in section VII.A.3 of this preamble 

concerning the Class I consultation and 

the analysis of air quality and other 

potential impacts under CAA section 

165(e). 

Because permitting authorities have 

had minimal experience in developing 

general permits and permits-by-rule for 

PSD, sufficient time would be needed to 

develop them as useful tools to reduce 

the administrative burden associated 

with the application of the PSD program 

to major GHG sources. Sufficient time 

would be needed for the following 

steps: (1) EPA must determine best 

candidate sources for general permits 

and permits-by-rule; (2) EPA must 

determine similar types of processes 

and source types and sizes to combine; 

(3) EPA must prioritize the development 

and use of general permits and permitsby-rule; (4) EPA must issue guidance or 

rulemaking (as needed) for each 

grouping of similar sources; (5) States 

must adopt the guidance or rulemaking 

in their SIPs, as needed; and (6) sources 

must implement the requirements. We 

estimate that EPA would require more 

than 3 years to develop and deploy 

general permits and permits-by-rule 

would require more than 3 years to 

develop and deploy for a candidate 

group of sources, and that additional 

time would be needed for the States and 

sources to take the indicated steps. 

EPA seeks comment on the use of 

general permits within the PSD 

program, including both EPA’s authority 

to do so and suggestions for how general 

permits would be established and used 

consistent with the requirements of the 

CAA and identification of source 

categories that could benefit from such 

an approach. 

b. General Permits for the Title V 

Program 

In contrast to the PSD program, in the 

title V program, general permits are 

specifically authorized under CAA 

section 504(d), which provides: 

The permitting authority may, after 

notice and opportunity for public 

hearing, issue a general permit covering 

numerous similar sources. Any general 


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permit shall comply with all 

requirements applicable for permits 

under this subchapter. No source 

covered by a general permit shall 

thereby be relieved from the obligation 

to file an application under section 503 

of this Act. 

EPA regulations describe general 

permits in 40 CFR § 70.6(d). These 

provisions specifically authorize the use 

of general permits covering numerous 

similar sources under the title V 

program. The general permit must also 

follow the public participation 

requirements of 40 CFR 70.7(h). The 

information development and review 

conducted as part of streamlining for an 

individual source can be used by the 

permitting authority to generate a 

general permit for similar sources or 

portions of sources. If a general permit 

were used, EPA and public review 

beyond that needed to issue the general 

permit would not be necessary when 

sources subsequently applied for the 

streamlined permit conditions 

established under the general permit. 

Even where a general permit is not 

issued, the availability of information 

obtained from the streamlining of one 

source may be useful as a model for 

future streamlining actions involving 

other similar sources. EPA notes that the 

part 71 regulations addressing title V 

permits issued by EPA (and delegated 

authorities) contain parallel provisions 

regarding general permits. See 40 CFR 

71.6(d). 

We believe general permits may have 

more near-term applications for the title 

V program than for the PSD program 

because of past experience of permitting 

authorities, however limited, in using 

this permit streamlining technique for 

title V. Certain States have already used 

general permits for a relatively narrow 

population of certain minor, mainly 

area-type sources with a simple set of 

applicable requirements that were 

relatively easy for both permitting 

authorities and sources to implement. 

These general permits allowed the 

sources a more focused ‘‘roadmap’’ to 

meeting their regulatory requirements 

with far less burden associated with 

applying for the permits and 

administering them in general. In 

response to the ANPR, some State 

commenters noted that they have a 

successful history of using general 

permits and believe the use of general 

permits could be an effective and 

reasonable approach to reduce 

regulatory costs and administrative 

burdens. 

We agree that there are similarities 

between the way general permits have 

been used in the past, particularly under 

title V, and the challenges permitting 

authorities would face for permitting 

GHG emissions for sources that would 

not already have, or necessarily need, a 

more comprehensive title V permit. 

However, most permitting authorities 

lack experience with general permits 

and with GHG sources in general. As a 

result, we believe that the process of 

developing general permits for title V 

purposes would parallel in certain 

respects the process of developing them 

for PSD purposes. Specifically, title V 

permitting authorities would need 

sufficient time to (1) determine 

candidate sources for general permits, 

(2) determine similar permit elements 

for those sources and develop adequate 

templates and formats for the general 

permits for those sources, (3) conduct 

formal EPA and public review of the 

general permit, and (4) develop an 

adequate implementation plan for 

sources to apply for such permits and 

for permit review staff to process such 

permits. After this, sources would need 

additional time to comply with the 

general permits. We believe this process 

would take at least 2 to 3 years for a 

partial set of general permits to be fully 

developed and ready for deployment. 

4. Electronic Permitting 

Implementation of electronic 

permitting (e-permitting) systems is 

growing across the U.S., as more and 

more States implement new or upgraded 

systems. We believe these systems, 

possibly in conjunction with general 

permitting procedures, could assist in 

addressing some of the administrative 

burden created by adding GHG 

emissions sources to the PSD and title 

V programs. 

Most States are currently using agency 

Web sites to deliver a range of air 

permitting program services, from 

enabling electronic submittal of permit 

applications to providing the public 

web access to permits and related 

documents. Permitting authorities find 

value in e-permitting systems because 

these systems can lead to improved 

customer service, decreased data entry 

errors, shortened permit review 

timeframes, and improved systems for 

managing permitting processes. In short, 

e-permitting systems can make better 

permits more quickly. Common State epermitting activities include: 

• Development of air permit 

application forms which can be 

accessed, completed, and submitted 

online; 

• Development of specialized 

software or database applications to 

review submitted permit applications 

and to support the permit development 

process; and 

• Posting issued permits and draft 

permit documents to air permitting Web 

sites. 

New technology is expanding the 

opportunity for collaboration and joint 

development around information 

system tools. To enable permitting 

authorities to handle the administrative 

workload associated with the 

application of the PSD and title V 

programs to GHG sources, EPA could 

assess and identify best practices for epermitting system implementation and 

support States in implementing effective 

and efficient systems using targeted epermitting tools and resources. For 

example, EPA could work with States to 

develop effective GHG permitting 

strategies in the following areas: 

• Permit application submittal which 

would involve processes for facilities to 

identify permits needed, determine the 

scope of information to include in 

permit applications, access and 

complete application forms, and submit 

those forms and supporting data to State 

and local permitting authorities. 

• Application review and draft permit 

generation which would involve 

processes for State and local permitting 

authorities to conduct administrative 

and technical permit application 

reviews, develop permit conditions, and 

sometimes create draft permit 

documents. This category could also 

include a broad range of information 

technology tools and resources that 

could support permit writers in 

preparing better permits more quickly. 

• Draft permit review and final 

permit issuance which would involve 

processes for State and local permitting 

authorities to manage completion of 

external reviews (including public and 

EPA review periods) and any related 

updates to the draft permit document, 

issuance of the final permit, and 

collection of permit fees. 

• Post-issuance activities which 

would incorporate all activities related 

to permits that are managed by State 

and local permitting authorities after 

permits are issued (including public 

access to permits and related 

documents, permit appeals, permit 

modifications, permit renewals, and 

inspections and compliance 

monitoring). 

• Workflow tracking and management 

which would incorporate all of the 

management procedures and tools that 

State and local permitting authorities 

use to track the permit development 

process, including internal permit 

authority timeline tracking and public 

access to workflow information. 


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5. ‘‘Lean’’ Techniques for Permit Process 

Improvement 

In the business world, ‘‘lean’’ 

techniques refers to a collection of 

process improvement principles, 

methods, and tools designed to help 

organizations identify and eliminate 

non-value-added activity (‘‘waste’’), in 

order to meet customer needs better, 

more quickly, and more efficiently. Lean 

techniques have been adopted across 

numerous business sectors and been 

adapted to address both production and 

administrative processes. Lean process 

improvements could help permitting 

authorities to address administrative 

burdens that are created if numerous 

GHG sources are added to their air 

permitting programs. 

In the context of air permitting, Lean 

improvement events typically focus on 

eliminating the following types of 

administrative process waste: Backlogs 

in permitting; errors in documents; 

unnecessary rework on documents; and 

delays associated with transmission of 

documents between the various parties 

that develop and approve them. Since 

2003, State environmental agencies have 

increasingly used Lean manufacturing 

principles and methods to drive rapid, 

continuous improvement in air 

permitting and other agency processes. 

B. Implementation of Streamlining 

Techniques and Overall Approach To 

Administering PSD and Title V 

Programs 

As noted above, these potential 

streamlining options and tools will 

require time to develop, issue, and reach 

full deployment. Each technique would 

generally take from 3 to 4 years to fully 

develop and implement. Therefore, if 

we did not phase in the applicability 

thresholds for sources of GHG emissions 

as soon as PSD and title V requirements 

are triggered for them, there would be a 

significant time period when numerous 

GHG sources exceeding the statutory 

permitting thresholds for PSD and title 

V would need to obtain permits, and 

permitting agencies would be faced with 

overwhelming administrative burdens. 

Also, at this point in time we do not 

have enough information to predict the 

full potential applications and impact of 

these streamlining techniques for 

permitting GHG sources. Therefore, it is 

impossible to predict a specific time in 

the future when and if such 

streamlining techniques would reduce 

the administrative burden of permitting 

authorities sufficiently for them to 

administer PSD and title V programs for 

GHGs at the current permitting 

thresholds. Instead, we propose to 

commit to investigating and developing 

these techniques as vigorously and as 

soon as possible as part of an overall 

GHG tailoring strategy that involves 

phasing in the GHG major source 

permitting thresholds as soon as PSD 

and title V requirements are triggered 

for GHG emitters, but that further 

involves reassessing the situation, 

completing a study within 5 years, and 

then taking up to 1 additional year to 

finalize regulations adopting the lowest 

threshold that we conclude is 

administrable based on the study. 

Even so, we have enough information 

now about some streamlining 

techniques, such as presumptive BACT 

in support of PSD permitting and 

general permits in support of title V 

permitting, to recognize that those 

techniques are quite likely to be 

beneficial to both permitting agencies 

and affected sources. We believe that 

within the framework we propose in 

this action there will be sufficient time 

to deploy the streamlining techniques 

and to evaluate their effectiveness in 

addressing administrative burden. 

Therefore, in conjunction with our 

proposed action to tailor the GHG 

permitting thresholds, we are 

committing to a concurrent effort to 

investigate, evaluate, and support the 

implementation of permit streamlining 

techniques to address GHG sources. We 

believe that while the proposed 

temporary thresholds will allow the 

permitting authorities to implement 

their programs for PSD and title V, it is 

also necessary for us to pursue 

applicable streamlining techniques that 

may help our assessment of the 

temporary thresholds as part of the 

threshold evaluation study. We believe 

that at the end of the threshold 

evaluation period we will have a better 

understanding and a sufficient record of 

the effectiveness of different permit 

streamlining techniques and how these 

techniques may influence the need to 

consider alternative thresholds. 

We request comment on which types 

of streamlining techniques, and for what 

source categories, would be of most 

value to permitting authorities and 

affected sources. We also request 

comment on the anticipated impact 

such techniques would have on 

permitting authorities’ administrative 

capabilities to address GHG permitting 

and how such impact would affect the 

need for the temporary thresholds 

proposed under this action. We also 

request comment on the time periods 

needed to develop and implement any 

such streamlining techniques and on 

how such time frames can expeditiously 

meet CAA requirements in light of the 

administrative burden that would 

remain. 

C. Strategies for Obtaining GHG 

Reductions From Sources Under the 

Proposed GHG Permit Thresholds 

In addition to pursuing permit 

streamlining techniques that may 

ultimately have application to smaller 

GHG source categories (e.g., those in the 

commercial and residential sectors), we 

also recognize that there are both 

current and future EPA programs that 

could be used to mitigate GHG 

emissions from these smaller sources. It 

may well be the case that, for the 

smaller sources, these approaches, 

which are summarized in this section, 

will result in more efficient and costeffective regulation than would case-bycase permitting. We therefore intend to 

fully explore the use of all available 

tools for addressing these sources at the 

same time as we explore streamlining 

the permitting programs. 

While EPA is proposing that during 

the first phase, GHG sources less than 

25,000 tpy CO2e will not be subject to 

PSD and title V requirements for 

purposes of applicability, there are 

feasible, cost-effective opportunities for 

reductions from these sources through 

means other than PSD and title V during 

the first phase. The tailoring proposal 

does not restrict our ability to explore 

these opportunities during this first 

phase. EPA has strong interest in 

pursuing such opportunities and 

therefore requests your comments on 

the practicability of near-term regulatory 

and nonregulatory programs to address 

smaller sources. 

The near-term opportunities for GHG 

emissions reductions in smaller-scale 

stationary sources include increased 

energy efficiency, process efficiency 

improvements, recovery and beneficial 

use of process gases, and certain raw 

material and product changes that could 

reduce inputs of carbon or other GHGgenerating materials. The use of 

alternative fuels and energy are also 

promising methods for achieving GHG 

reductions. 

One key challenge in addressing 

sources emitting less than 25,000 tpy 

CO2e is their diversity. The source types 

may range from landfills to small 

stationary fuel combustion devices to 

waste water treatment plants and 

electronics manufacturing. In addition 

to including a range of processes, these 

source categories may include large 

(>25,000 tpy CO2e) and small sources. 

EPA is soliciting public comment on a 

fair and systematic way to address the 

diverse number of categories where 

individual sources are comparatively 

small, but the source category could be 

addressed through some cost effective 

means. 


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Controls on sources at this scale 

would likely involve decisions on how 

proposed installations of equipment and 

processes for a specific source category 

can be redesigned to make those sources 

more energy efficient, for example, 

while taking cost considerations into 

account. However, these types of 

approaches have yet to be adopted 

widely, because of market barriers, 

insufficient financial and legal 

incentives, or other barriers. Below, EPA 

provides some examples of approaches 

that could be taken and existing 

programs that could provide useful 

platforms to address smaller sources. 

We request comment on the types of 

strategies that may be appropriate for 

these sources, considerations—such as 

cost and feasibility—with respect to 

implementing programs for smaller 

sources, approaches to incentivize these 

types of programs, and ways to measure 

the effectiveness of such initiatives. We 

also request comment on whether these 

initiatives have the potential to be 

developed in such a way as to meet the 

essential PSD and title V program 

requirements for sources, even if the 

initiatives do not necessarily meet the 

letter of those requirements (such as the 

case-by-case determinations required 

under the PSD program), based on 

administrative imperatives. 

For instance, EPA could design a 

hybrid approach where sources on the 

larger end of the below-25,000-tpy CO2e 

range could be required to analyze 

pathways to reduce GHG emissions by 

a certain percentage, but EPA or the 

States could use flexible criteria in 

requiring reductions from those sources, 

including the timeframe for achieving 

such reductions. These requirements 

could be supplemented by an incentive 

program, through which a State could 

use loan, grant, or emissions credit 

incentives to help such sources lower 

their GHG emissions profile, especially 

when the source is performing a 

modification. Any approach would have 

to be systematic, in that the criteria used 

would have to be responsive to the 

source volume of emissions, the 

reductions that might be achieved, costeffectiveness, permanence and 

enforceability. 

A further alternative would be the use 

of section 111(d) of the CAA to work 

with smaller sources to reduce 

emissions. In contrast to other 

provisions in the Act which require 

regulation of all sources above specific 

size thresholds, section 111 gives EPA 

significant discretion to identify the 

facilities within a source category that 

should be regulated. To define the 

affected facilities, EPA can use size 

thresholds for regulation and create 

subcategories based on source type, 

class or size. Emissions limits also may 

be established either for equipment 

within a facility or for an entire facility. 

EPA also has significant discretion to 

determine the appropriate level for the 

standards. 

In addition to exploring regulatory 

options, EPA will continue to consider 

existing nonregulatory programs to 

achieve cost-effective emissions 

reductions. Some of the EPA’s current 

programs, discussed below, are 

aggressively working to cost-effectively 

mitigate GHG emissions through energy 

efficiency in industry and consumer 

products and other voluntary programs 

that address several key CH4 and other 

high-GWP sources. The source 

categories discussed below are not 

exhaustive, and are discussed as 

illustrative examples. It is also 

important to note that particular sources 

in these categories could fall above or 

below a threshold value of 25,000 tpy 

CO2e. 

Energy efficiency is one of the lowest 

cost means for addressing climate 

change. Since 1992, EPA, through the 

ENERGY STAR program, has achieved 

GHG reductions by helping U.S. 

businesses adopt cost-effective, energyefficient technologies and practices. The 

program combines several elements, 

including: ENERGY STAR branding of 

commercial products with superior 

energy performance and promoting 

strategic energy management practices 

across the commercial and industrial 

sectors. We also work with States to 

leverage wider use of such ENERGY 

STAR products as commercial roofing 

materials, furnaces, and boilers in 

commercial settings. States can promote 

the purchasing of ENERGY STAR 

qualified products in residential multifamily housing and commercial 

buildings such as offices, hospitals, 

hotels, schools, and warehouses. These 

building types comprise the vast 

majority of sources that would have 

emissions below the proposed 25,000- 

tpy CO2e major source threshold. 

Also for these building types, States 

can take advantage of EPA tools to 

encourage, track and reward 

improvements in building efficiency. 

Already, States are leveraging such tools 

as Portfolio Manager to make disclosure 

of building efficiency part of sale/lease 

transactions. Many States also use 

ENERGY STAR to incentivize adoption 

of energy-efficient equipment and 

buildings through regulated utilities and 

other energy efficiency program 

sponsors. Finally, EPA provides 

resources to help—or to enable States to 

help—manufacturers improve energy 

efficiency through a transferable 

platform that States can adopt which 

includes sector-targeted energy 

efficiency guidance, energy program 

development tools, and a national rating 

system that scores the energy 

performance of plants and enables 

documentation of energy improvement 

for those interested in demonstrating 

change in performance. For additional 

information on these programs, visit 

http://www.energystar.gov. 

Methane and other high-GWP gases, 

including PFCs, HFCs, and SF6, are 

potent GHGs that contribute to climate 

change. In an effort to reduce emissions 

of these gases, EPA is working 

cooperatively with a variety of 

companies and organizations in the 

energy, waste management, agriculture, 

and industrial sectors to implement 

voluntary programs that encourage costeffective emissions reductions. These 

programs offer a range of technical and 

policy information products and 

exchanges and track emissions 

reductions in the following key sectors: 

landfills, oil and gas systems, animal 

waste, coal mines, industrial processes 

including aluminum production, 

semiconductor manufacturing, electric 

power transmission, magnesium 

production and processing, and the 

production of HCFC–22, and wastewater 

from domestic or industrial sources. 

Experience and lessons learned through 

these programs can be used by States 

and EPA for regulatory and 

nonregulatory initiatives. For additional 

information on the CH4 and high-GWP 

programs, visit http://www.epa.gov/ 

methane/voluntary.html and http:// 

www.epa.gov/highgwp/voluntary.html. 

For more information on opportunities 

for GHG reductions at wastewater 

treatment facilities, visit http:// 

www.epa.gov/chp/documents/ 

wwtf_opportunities.pdf. 

VIII. Description and Rationale of 

Proposed Action 

A. Proposed Permitting Thresholds for 

GHGs 

Based on the legal rationale of 

‘‘absurd results’’ and ‘‘administrative 

necessity’’ described in section VI of 

this preamble, EPA is proposing with 

this action to establish the first phase of 

the thresholds for determining 

applicability under both the PSD and 

title V permitting programs and to set a 

significance level for GHGs under the 

PSD program. For both PSD and title V 

purposes, we are proposing to set the 

applicability threshold at 25,000 tpy 

CO2e. In addition, for the PSD 

significance level, we are proposing a 

range from 10,000 to 25,000 tpy CO2e. 

Upon finalization of this rule, and based 


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on comments received and the 

supporting record, we will establish a 

singular value for the GHG significance 

level. 

EPA is also proposing in this action 

to commit to evaluating the impact, 

effectiveness, and need for these GHG 

permitting thresholds as well as other 

aspects of the administrative burden for 

permitting authorities in a study to be 

completed within 5 years from the 

promulgation date of the final version of 

this rulemaking. Based on the results of 

that study, EPA would propose and 

promulgate a rulemaking within a year 

later that would establish the second 

phase of the tailoring program. This 

rulemaking would reaffirm the firstphase GHG permitting thresholds or 

revise those thresholds, promulgate 

other streamlining techniques, and/or 

take action consistent with the goal of 

expeditiously meeting CAA 

requirements in light of the 

administrative burden that remains at 

that time. 

This section of the preamble defines 

the GHG metric used for purposes of 

determining whether the proposed 

thresholds are exceeded, describes the 

policy and technical rationale for 

selecting the proposed applicability 

thresholds for PSD and title V, and 

discusses the proposed 5-year threshold 

evaluation study. 

While the rest of this section 

discusses the details of our proposed 

approach, we note at the outset that 

there may be other ways to structure the 

first phase of permit program 

applicability for GHGs than the one we 

describe as our preferred approach. For 

example, we could address the 

administrative burden by defining the 

sources in the first phase subject to 

permitting for GHGs to include only 

sources that are or become subject to 

title V or PSD permitting obligations 

under the existing 100/250 tpy statutory 

thresholds on the basis of their 

emissions of a non-GHG pollutant. 

Under this approach, for example, a 

new source that triggered PSD for a nonGHG regulated NSR pollutant and that 

also emits GHGs, or an existing source 

going through a modification that 

triggered PSD for a non-GHG regulated 

NSR pollutant and which also increased 

its GHG emissions would have to do a 

BACT analysis for GHGs. This BACT 

process would be expected to identify 

control options which are technically 

feasible and cost effective for a 

particular source based on the tons 

emitted, thereby ensuring that the first 

phase of permitting would apply to the 

largest sources of GHG that are currently 

subject to CAA regulation based on 

emissions of non-GHG pollutants. 

Sources that do not trigger PSD or title 

V for a non-GHG pollutant would not be 

subject to these programs solely on the 

basis of their GHG emissions. Under 

such an approach, we may still need to 

establish a significance level for GHG 

emissions at sources that are subject to 

PSD due to their non-GHG emissions, 

but we could consider setting this based 

on the 10,000 ton CO2 eq significance 

level proposed elsewhere in this 

package. We solicit comment on this 

approach, and on other potential 

variations on our proposal that 

commenters believe could address the 

administrative concerns in more 

effective ways. 

B. What is the definition of the GHG 

pollutant for the proposed permitting 

thresholds? 

1. Background on GHG Metrics 

The selection of a GHG metric is an 

important consideration in developing 

the GHG permitting threshold options 

because it sets the basis for evaluating 

whether a particular source exceeds a 

given threshold. As noted in section 

IV.A of this preamble, one commonly 

utilized metric is to estimate and report 

emissions of GHGs as the collective sum 

of emissions of the six primary GHGs, 

with applicable GWPs applied to the 

non-CO2 gases. When GWPs are applied 

to the mass emissions of one of the 

primary GHGs, the resulting weight is 

referred to as CO2e (see section IV.A of 

this preamble for a description of CO2e). 

Another possible metric would consist 

of individual mass-based emissions for 

each GHG, without their GWP values 

applied. The choice of the GHG metric 

can have a significant impact on design 

and implementation of the GHG 

permitting threshold. 

For example, if a source only 

evaluated its CO2 emissions against a 

permitting threshold, it may fall below 

the threshold, but if it evaluated the 

sum of all its primary GHG emissions on 

a CO2e basis, it may fall above the 

threshold. Although there may be a 

variety of considerations for including 

one GHG metric over another, the 

choice of a GHG metric, whether it be 

the sum of the CO2e emissions or 

individual GHGs, for both PSD and title 

V programs, must include any of the 

individual GHGs that may be subject to 

regulatory action under the CAA, as 

discussed in section IV.D of this 

preamble. 

One of the reasons EPA is undertaking 

this rulemaking is because it intends to 

propose and finalize a separate rule that 

regulates GHG emissions from lightduty motor vehicles and that would 

trigger PSD and title V permitting 

requirements for stationary GHG 

emissions sources. The light-duty motor 

vehicle rule will identify a GHG 

pollutant or pollutants subject to 

regulation. However, at the time of this 

proposal there is uncertainty as to 

exactly what GHG metric will ultimately 

be finalized in the light-duty motor 

vehicle rule. Also, as discussed in the 

ANPR, there may be other future 

regulatory actions or decisions by EPA 

that would determine what form of 

GHGs would be subject to regulation 

under the CAA, such as new source 

performance standards for certain 

source categories under CAA section 

111. This uncertainty over the form of 

the GHG metric in future regulatory 

actions is an important factor in our 

selection of the GHG metric for the 

permitting threshold. 

In order to better inform our 

consideration of different GHG metrics 

for the proposed GHG permitting 

thresholds, we also reviewed the GHG 

metrics used in two recent EPA 

proposals: the endangerment finding 

and the GHG mandatory reporting rule. 

In the proposed endangerment finding 

for GHGs, the Administrator proposed 

to define the air pollutant as the 

‘‘[c]ollective class of the six greenhouse 

gases,’’ and referred to the widespread 

use of CO2e as a means to evaluate the 

six primary GHGs as a group (74 FR 

18886, April 24, 2009). The 

Administrator also identified this 

collective approach to defining GHGs, 

for the contribution test, as most 

consistent with the treatment of GHGs 

by those studying climate change 

science and policy, where it has become 

common practice to evaluate GHGs on 

collective CO2e basis. However, the 

Administrator also recognized in the 

proposed finding that each GHG could 

be considered a separate air pollutant 

and that defining the air pollutant as the 

group of six GHGs does not preclude 

setting standards that control emissions 

of individual GHGs, as constituents of 

the group. 

Under EPA’s GHG Mandatory 

Reporting Rule proposal, the emissionsbased applicability thresholds for 

reporting are based on total CO2e 

calculated from the sum of a facility’s 

emissions of the six primary GHGs plus 

other fluorinated GHGs, applying GWP 

values to non-CO2 gases (74 FR 16448, 

April 10, 2009). However, annual 

reporting is required for both total CO2e 

and individual GHGs on a mass basis, 

with no GWPs applied for non-CO2

gases. 

We also note that both domestic 

regional cap-and-trade programs (e.g., 

the Regional Greenhouse Gas Initiative) 

and international trading programs (e.g., 


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25 In the proposed endangerment finding, the 

Administrator also stated that if each of the four 

GHGs emitted by new motor vehicles were treated 

as separate air pollutants, she would find that each 

of the four contributes individually to the air 

pollution that endangers. 

the European Union Emission Trading 

Scheme) make use of the CO2e metric 

for purposes of offsets accounting and 

emissions trading that involves different 

GHGs. Under the United Nations 

Framework Convention on Climate 

Change (UNFCCC), the U.S. and other 

countries also report their annual 

emissions of the six GHGs in terms of 

CO2e units. 

2. Rationale for GHG Metric Selection 

for Proposed Permitting Thresholds 

As discussed elsewhere, EPA 

interprets the PSD and title V 

requirements to apply to each ‘‘air 

pollutant’’ that is ‘‘subject to regulation’’ 

under other provisions of the CAA. It is 

important to determine which GHGs to 

treat as the ‘‘air pollutant’’ that is 

subject to PSD and title V requirements 

and how to measure those GHGs. Taken 

together, this is termed the GHG metric. 

As noted above, in the proposed 

endangerment and cause or contribute 

findings under section 202(a) of the 

CAA, EPA proposed to define the ‘‘air 

pollutant’’ for the contribution analysis 

as the class of six GHGs CO2, CH4, N2O, 

SF6, HFCs, and PFCs); but EPA also took 

comment on the concept of defining 

each GHG as a separate air pollutant. In 

connection with the light-duty vehicle 

rule under CAA § 202(a) that EPA is 

proposing at the same time as this 

action, four of those six GHGs which are 

emitted by light-duty motor vehicles are 

proposed to be subject to controls under 

the light-duty vehicle rule (all but SF6

and PFCs). As EPA explains in the lightduty vehicle rule and below, EPA has 

discretion under section 202(a) to 

establish controls at the GHG-specific 

level regardless of whether the final 

definition of ‘‘air pollutant’’ for the 

contribution analysis is the class of six 

GHGs or each GHG individually. In light 

of the ongoing relevant rulemakings, 

this proposal discusses several possible 

ways for identifying the GHG metric for 

PSD and title V requirements. First, the 

metric could address each GHG 

individually, or it could address them as 

a single GHG group. Second, the metric 

could include (whether individually or 

as a group) all six of the GHGs, or only 

those four GHGs subject to controls in 

the light-duty vehicle rule. Third, the 

metric could measure the GHGs 

(whether individually or as a group) on 

the basis of their actual tonnage or their 

equivalent tonnage based on global 

warming potential (GWP), which we 

refer to as CO2 equivalent, or CO2e. 

We propose to identify the GHG 

metric as the group of six GHGs, on a 

CO2e-basis. Using a CO2e basis, a 

source’s emissions for any of the six 

primary GHGs that are ‘‘subject to 

regulation’’ under the Act, and therefore 

considered ‘‘regulated NSR pollutants,’’ 

are summed on a CO2e basis using their 

GWP values. The summed CO2e 

emissions would then be compared to 

the applicable permitting threshold to 

determine whether the source is subject 

to PSD and title V requirements. We 

solicit comment on whether we should 

identify the GHG metric in a different 

way, such as one of the options 

identified above. 

a. Legal Rationale 

Because PSD and title V apply to each 

‘‘air pollutant’’ subject to regulation, it 

is necessary both to examine the 

definition of ‘‘air pollutant’’ and to 

determine which air pollutant or 

pollutants are proposed to be subject to 

regulation under CAA § 202(a). 

PSD applies to a ‘‘major emitting 

facility,’’ under CAA § 165(a), and that 

term is defined under CAA § 169(1) as— 

any of the following stationary sources of air 

pollutants which emit, or have the potential 

to emit, one hundred tons per year or more 

of any air pollutant from * * * stationary 

sources [in 28 listed categories]. * * * Such 

term also includes any other source with the 

potential to emit two hundred and fifty tons 

per year or more of any air pollutant. 

(Emphasis added.) Similarly, Title V 

requirements apply to ‘‘major 

source[]s,’’ under CAA § 502(a), and that 

term is defined under CAA § 501(2)(B) 

and CAA § 302(j) as— 

any stationary facility or source of air 

pollutants which directly emits, or has the 

potential to emit, one hundred tons per year 

or more of any air pollutant * * *. 

(Emphasis added.) The term ‘‘air 

pollutant,’’ which, as just noted, is 

central to the applicability provisions of 

both PSD and title V, is defined under 

CAA § 302(g) as— 

any air pollution agent or combination of 

such agents, including any physical, 

chemical, biological, radioactive * * * 

substance or matter which is emitted into or 

otherwise enters the ambient air. 

As just noted, EPA treats sources 

emitting air pollutants as subject to PSD 

and title V requirements only if the air 

pollutants are ‘‘subject to regulation’’ 

under other provisions of the CAA. 

EPA’s current interpretation of ‘‘subject 

to regulation’’ is found in the PSD 

Interpretive Memorandum, which 

defines the term as meaning subject to 

either a provision in the CAA or a 

regulation adopted by EPA under the 

CAA that requires actual control of 

emissions of that pollutant, and to 

exclude pollutants for which EPA 

regulations only require monitoring or 

reporting. Accordingly, under the PSD 

Interpretive Memorandum, the air 

pollutant that is subject to regulation is 

the air pollutant for which actual 

controls are required under other 

provisions of the CAA. 

We believe that PSD and title V 

requirements will be triggered for GHGs 

if EPA completes the rulemaking that 

EPA is currently proposing for lightduty vehicles and vehicle engines. That 

rule is based on CAA § 202(a). 

Paragraph (1) of § 202(a) provides, in 

relevant part: 

The Administrator shall by regulation 

prescribe (and from time to time revise) in 

accordance with the provisions of this 

section, standards applicable to the emission 

of any air pollutant from any class or classes 

of new motor vehicles or new motor vehicle 

engines, which in his judgment cause, or 

contribute to, air pollution which may 

reasonably be anticipated to endanger public 

health or welfare. 

(Emphasis added.) This provision, by its 

terms, requires, as a pre-requisite for 

regulating an ‘‘air pollutant’’ from the 

described mobile sources, that EPA 

must make what has come to be called 

an ‘‘endangerment finding’’ for that ‘‘air 

pollutant;’’ and further requires that 

once EPA makes that endangerment 

finding, EPA must proceed to ‘‘set 

standards [for new motor vehicles] 

applicable to the emission of [the] air 

pollutant’’ for which the endangerment 

and companion cause or contribute 

finding was made. EPA has already 

proposed an endangerment finding for 

the air pollutant comprised of the 

collective group of six GHGs: CO2, CH4, 

N2O, SF6, HFCs, and PFCs, as well as a 

finding that new motor vehicle 

emissions of the 6 GHGs, viewed as a 

single group air pollutant, contribute to 

this endangerment. 74 FR 18886, 18904, 

18907 (April 24, 2009).25 Four of these 

GHGs are emitted by light-duty motor 

vehicles; as a result, concurrently with 

this rule, EPA is proposing to set 

emissions standards for those four 

GHGs. As noted in the light-duty 

vehicle rule and below, EPA can set 

standards for the specific GHGs emitted 

by light-duty motor vehicles versus for 

the single air pollutant that is comprised 

of the six GHG, and still comply with 

the requirement in section 202(a) 

regardless of how EPA finally defines 

‘‘air pollutant’’ in the final 

endangerment and contribution 

findings. EPA is proposing to regulate 

the GHGs emitted by light-duty vehicles 

by establishing separate emission 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 55329 

26 ‘‘Inventory of U.S. Greenhouse Gas Emissions 

and Sinks: 1990–2007,’’ U.S. Environmental 

Protection Agency, EPA 430–R–09–004, April 15, 

2009. p. ES–3. See also the SAR GWPs (IPCC 1996) 

in table 1–2, p. 1–6. http://www.epa.gov/ 

climatechange/emissions/usinventoryreport.html. 

standards that limit emissions of CO2, 

CH4, and N2O. EPA would also allow 

credit towards the CO2 standard based 

on vehicle air conditioner controls that 

reduce emissions of HFCs. 

In light of how the proposed 

endangerment and contribution finding 

identifies, and light-duty vehicle rule 

regulates, emissions of, the ‘‘air 

pollutant’’ under CAA § 202(a), EPA’s 

task in this proposal is to identify the 

‘‘air pollutant’’ for which PSD and title 

V will become applicable under CAA 

§§ 165(a)/169(1) and CAA §§ 502(a)/ 

501(2)/302(j). This ‘‘air pollutant,’’ for 

PSD and title V purposes, is the ‘‘air 

pollutant’’ that is ‘‘subject to regulation’’ 

under CAA § 202(a), according to EPA 

interpretation. 

We are proposing that the relevant 

‘‘air pollutant’’ for purposes PSD and 

title V applicability is the single air 

pollutant that is comprised of the group 

of six GHGs, as proposed in the § 202(a) 

endangerment and contribution 

findings. These six GHGs as a class 

comprise the air pollutant that is the 

subject of the endangerment finding and 

companion contribution finding and 

constitute the air pollutant that is 

regulated by the light-duty vehicle rule 

through measures that address the 

components of that air pollutant that are 

emitted from the mobile sources. Thus, 

although the CAA § 202(a) proposal 

establishes controls only with respect to 

four GHGs, as a legal matter the 

proposal covers the entire set of GHGs 

that as a class are the single ‘‘air 

pollutant’’ in the proposed 

endangerment and contribution 

findings. 

We also solicit comment on whether 

only the four GHGs actually controlled 

under the mobile source rule should be 

treated as the ‘‘air pollutant’’ subject to 

PSD and title V applicability. In 

particular, we solicit comment on 

whether such an approach would be 

consistent with our treatment of other 

‘‘air pollutants’’ that are comprised of 

numerous individual substances (e.g., 

VOCs or PM), and how it interacts with 

EPA’s duty under section 202(a) to sets 

standards for emissions of the ‘‘air 

pollutant’’ for which a contribution 

finding is made under that section. 

In addition, we further believe that 

the definition of ‘‘air pollutant’’ for PSD 

and title V purposes provides for 

sufficient flexibility that the form of the 

standard—that is, the metric—that EPA 

adopts for PSD purposes may differ 

from the form that EPA adopts for 

purposes of regulation under CAA 

§ 202(a). Section 202(a) authorizes EPA 

to set ‘‘standards applicable to the 

emission of [the] air pollutant.’’ This 

provides EPA significant discretion in 

determining how to structure its new 

motor vehicle standards, as long as they 

are ‘‘applicable to emission’’ of the air 

pollutant. How EPA exercises its 

discretion under this provision, whether 

by separate standards, a collective 

standard, or some combination of these, 

as has been proposed, does not change 

the fact that each of these approaches 

has the same result—regulating the air 

pollutant which is the subject of the 

contribution finding under section 

202(a). It is this overall result— 

regulation of the air pollutant—that 

determines the applicability of PSD and 

title V, not the particular form of the 

standards adopted under section 202(a). 

To reiterate, under 302(g), ‘‘air 

pollutant’’ means ‘‘any air pollution 

agent or combination of such agents, 

including any physical, chemical, 

biological, radioactive * * * substance 

or matter which is emitted into or 

otherwise enters the ambient air.’’ We 

believe that as long as the same ‘‘air 

pollution agent or combination of such 

agents’’ is regulated for PSD and title V 

purposes as is regulated under CAA 

§ 202(a), then the PSD and title V 

applicability requirements are met, 

whether or not the structure of the 

regulation is the same as employed 

under section 202(a). Accordingly, we 

believe that as long as the six GHGs that 

are the ‘‘air pollutant’’ being regulated 

under CAA § 202(a) are subject to PSD 

and title V applicability through some 

metric, then the precise metric through 

which they are subject to PSD and title 

V may differ from the precise manner in 

which they are regulated under CAA 

§ 202(a). Thus, we believe we may treat 

the six GHGs as a group for PSD and 

title V purposes, and weight them by 

their GWP, even though they are 

generally regulated individually under 

the mobile source rule. 

b. Policy and Programmatic Rationale 

For individual GHGs, differing CO2

equivalent factors (such as GWP values) 

are found in the literature. As noted 

earlier in this preamble, the U.S. and 

other countries report their annual 

emissions of the six GHGs in terms of 

CO2e units, following UNFCCC 

guidelines. The UNFCCC reporting 

guidelines for national inventories, as 

updated in 2006, require the use of 

GWPs from the IPCC SAR (IPCC 1996) 

for CO2e calculations, even though the 

IPCC has subsequently updated its GWP 

values.26 Consistent with these most 

recent guidelines, we are proposing to 

use the same SAR-derived GWP values, 

which are based on the effects of GHGs 

over a 100-year time horizon, for 

purposes of calculating GHG emissions 

in tpy CO2e for this tailoring rule. 

We recognize a number of advantages 

in the use of a cumulative CO2e measure 

(‘‘cumulative’’ here refers to the 

summation of emissions of CO2e for all 

applicable GHGs) using GWP over an 

individual, mass-based metric, 

including: (1) A cumulative CO2e 

metric, by incorporating the GWP 

values, addresses the combined 

radiative forcing of the GHGs emitted; 

(2) a cumulative CO2e metric by 

definition includes any of the six 

primary GHGs that are emitted and 

therefore would effectively include any 

one or combination of the six primary 

GHGs that might become subject to 

regulation, thus encompassing a greater 

variety of possible future regulatory 

approaches; (3) a cumulative CO2e 

metric would be consistent with the 

proposed mandatory reporting rule 

thresholds (thereby creating a ‘‘common 

currency’’ for recordkeeping for both 

industry and permitting authorities); 

and (4) a CO2e metric could allow more 

flexibility for designing and 

implementing control strategies that 

maximize reductions across multiple 

GHGs and would also likely align better 

with possible future regulations that 

allow for such flexibility. 

We also considered a GHG permitting 

threshold metric based on individual 

GHGs on a mass basis, with no GWP 

applied. The main benefit of an 

individual-GHG-based metric is that it 

may provide some ability to better 

differentiate sources and project 

emissions that affect one particular 

GHG. Because of this differentiation, it 

also may allow for simpler program 

implementation with regards to 

establishing emissions limits, 

establishing BACT, compliance 

assessment, and measurement/ 

monitoring methods. However, we 

believe that the benefits in using the 

cumulative group of GHGs outweigh 

any implementation advantages to using 

an individual-GHG-based metric. In 

particular, the cumulative-GHG, CO2ebased metric addresses all GHGs and 

their radiative forcing potential and 

would provide some flexibility to a 

source to design and maximize GHG 

reductions across the facility. 

Conversely, an individual-GHG-based 

metric may limit a facility’s flexibility to 

maximize GHG reductions across GHGs 

and is generally less consistent with the 

widespread treatment of GHGs in 

inventory, reporting, and emissions 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
55330 Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 

offset protocols mentioned in section 

VIII.B.1 of this preamble. 

We solicit comment on the benefits 

and limitations of our proposed GHG 

PSD and title V permitting threshold 

metric based on CO2e. We also request 

comments on proposed alternative 

metrics (such as individual GHG basis) 

and the effect those alternative metrics 

would have on setting permitting 

thresholds for GHGs. 

3. Possible Limitation of Proposed 

Metric for PSD and Title V Thresholds 

and for PSD Netting Purposes 

a. PSD and title V applicability 

thresholds 

This proposed metric may also 

warrant a limitation for PSD and title V 

threshold purposes. In rare instances, it 

is possible that a source may emit only 

a non-CO2 GHG in very small amounts, 

on a mass basis, but one that carries a 

very large GWP. In this case, it is 

possible that the source may emit the 

GHG in amounts that fall below the PSD 

statutory applicability threshold of 100/ 

250 tpy on a mass basis, and fall below 

the title V statutory applicability 

threshold of 100 tpy on a mass basis, but 

exceed the 25,000 CO2e PSD and title V 

applicability thresholds (which, as 

discussed above, are calculated on a 

GWP basis) proposed in this action. 

Under these circumstances, the source 

would trigger PSD and title V under our 

proposed rule even though its GHG 

mass emissions would not, in fact, 

exceed the statutory triggers. 

We seek comment on whether we 

should address this case; that is, 

whether such a source should be subject 

to PSD or title V. Because the PSD and 

title V statutory thresholds are 

expressed on a mass basis—i.e., tpy—we 

are concerned that the metric proposed 

with this action could have the effect of 

subjecting to PSD or title V 

requirements a source whose emissions 

fall below the statutory threshold limits 

on a mass basis. Accordingly, we seek 

comment on whether we should include 

some refinements to the CO2e metric, 

such as adding a 100- or 250-tpy metric 

that is mass-based. Under this 

refinement, a source would be subject to 

PSD and title V only if its GHG 

emissions exceeded the statutory 

threshold levels on an actual tonnage 

basis and if its GHG emissions exceeded 

the first phase threshold emissions 

proposed in this notice on a CO2e basis. 

However, we are also concerned that 

efforts to address this circumstance—for 

example, by requiring separate tracking 

of individual GHG mass emissions in 

addition to CO2e for up to six gases— 

would be complex and confusing to 

administer. Similarly, as discussed 

above, we are concerned that 

implementing permitting only on an 

individual gas basis would have several 

disadvantages compared to our 

proposed CO2e-based approach. 

b. Netting 

The same issue is also a concern as 

the proposal relates to PSD netting. By 

way of background, an existing source 

becomes subject to PSD when it makes 

a major modification, which generally 

occurs when the source is a major 

emitting facility and makes a physical or 

operational change that increases its 

emissions of a regulated air pollutant by 

a significant amount. In calculating the 

amount of the increase in emissions, the 

source must add to the increase the 

amount of any contemporaneous— 

generally, within the previous 5 years— 

increases and decreases that resulted 

from other changes the source made. If 

the total amount, so calculated, does not 

exceed the significance level, then the 

source is not subject to PSD for the 

change, and instead has ‘‘netted out’’ of 

PSD. 

In rare instances, it is possible that a 

source of two or more different types of 

GHGs, with different GWPs, may make 

two or more contemporaneous changes 

that increase its emissions of one type 

of GHG and decrease its emissions of 

another type of GHG. The effect of those 

changes may be that the source will 

have decreased its emissions of its 

GHGs on a mass basis, but increased its 

emissions of GHGs on a CO2e basis 

above the significance level. Under 

these circumstances, we are seeking 

comment on whether that source should 

be treated as being subject to PSD due 

to its physical or operational change. 

We could prevent the source in this 

example from becoming subject to PSD 

by requiring that for an existing source’s 

physical or operational change to be 

treated as a modification that triggers 

PSD due to its GHG emissions, the 

change must, taking into account 

contemporaneous changes, increase 

GHG emissions on a mass basis by any 

amount, and increase GHG emissions on 

a CO2e basis by the amount of the 

significance level proposed in this 

action. However, we are concerned that 

efforts to address this circumstance 

would be even more complex and 

confusing to administer for netting than 

it would be for major source 

determinations. 

We therefore solicit comment on how 

best to address these situations 

involving new source permitting and 

netting in light of our proposed choice 

of a GHG PSD and title V permitting 

threshold metric based on CO2e. We are 

asking for comment on whether these 

rare circumstances should be addressed 

in light of the statutory language, and if 

so, how. Would a mass-based metric for 

each individual GHG be an appropriate 

way to address the issue and, if so, 

should it be implemented in addition to, 

or in place of, our proposed CO2e 

metric? 

C. What is the rationale for selecting the 

proposed GHG permitting thresholds for 

PSD? 

1. Major Stationary Source Applicability 

Threshold for Sources of GHGs 

With this action, we are proposing to 

establish, for the first phase of the PSD 

GHG tailoring program, the PSD major 

source threshold at 25,000 tpy CO2e and 

the significance level at 10,000 to 25,000 

tpy CO2e, based on the legal doctrine of 

‘‘absurd results’’ and ‘‘administrative 

necessity,’’ as described in section VI of 

this preamble. This first phase will be 

followed by a study and then 

promulgation of additional rulemaking 

that will establish the next phase of 

requirements. This section provides a 

more detailed discussion of the 

technical and policy basis for 

establishing these threshold levels. 

a. Administrative Burdens Associated 

With the Statutory Threshold Level and 

the Proposed Permitting Threshold 

Level 

As noted previously, for PSD 

purposes, if we do not establish a 

different ‘‘major’’ source level for GHG 

emitters, the effect would be that the 

statutory threshold level would apply, 

so that GHG sources in the 28 listed 

categories under CAA section 169(1) 

would be subject to a 100-tpy threshold, 

and all other GHG sources would be 

subject to a 250-tpy threshold. Under 

this scenario, tens of thousands of 

sources each year would undertake 

projects that would have to comply with 

the PSD program, which would 

overwhelm the permitting authorities 

and interfere with the issuance of 

permits to all sources, whether they 

emit GHGs or not. 

Accordingly, EPA is proposing a PSD 

‘‘major’’ source applicability threshold 

of 25,000 tpy CO2e. The rationale for 

this level is to reduce the administrative 

burden to the point where it is no longer 

administratively impossible to 

implement the PSD program. Although 

requiring permitting authorities to 

permit sources of GHG emissions at 

25,000 tpy CO2e and higher would 

increase the level of PSD permitting and 

therefore increase administrative 

burdens, compared to current 

permitting levels, EPA believes that this 

increase would not exceed the capacity 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 55331 

27 ‘‘Technical Support Document for Greenhouse 

Gas Emissions Thresholds Evaluation;’’ Air Quality 

Policy Division, Office of Air Quality Policy and 

Standards; U.S. Environmental Protection Agency; 

July 7, 2009. 

28 ‘‘Methodology for Estimating Modified Sources 

That Would be Subject to PSD Permitting for 

GHGs;’’ Prepared by EPA Staff; August 2009. 

29 ‘‘Summary of ICR-based Data Used to Estimate 

Avoided Burden and Evaluate Resource 

Requirements at Alternative GHG Permitting 

Thresholds;’’ Prepared by EPA Staff; August 2009. 

of permitting authorities to implement 

the PSD program. 

EPA calculated the administrative 

burden of permitting GHG emitters at 

the 25,000-tpy CO2e threshold level as 

follows: As noted earlier in this 

preamble, EPA conducted a threshold 

data analysis that provided information 

on the numbers of facilities that could 

potentially be subject to PSD review 

under different CO2e-based emissions 

thresholds and the administrative 

resources needed to process permits for 

these facilities. Through the process 

described in this section of the 

preamble, we estimate that, at a 25,000- 

tpy CO2e applicability threshold for PSD 

major sources, approximately 400 

additional new or modified facilities 

would be subject to PSD review in a 

given year. These include 

approximately 130 new facilities and 

approximately 270 modifications at 

existing major sources that would be 

subject to PSD review as major 

modifications. Many, but not all, of 

these facilities would be subject to PSD 

review for other pollutants that they 

emit. These estimates compare to the 

280 PSD permits that are currently 

issued in a typical year. 

We acknowledge that our estimates 

for both new facilities and modifications 

are highly uncertain because they rely 

on growth trends in industries and 

businesses, which are inherently 

difficult to predict, especially under 

changing economic conditions. 

We developed these estimates as 

follows: To estimate the number of new 

sources, we identified the various 

source or industry categories included 

in the threshold data analysis, along 

with the number of sources in each 

category. We then applied source- or 

industry-specific growth rates to 

estimate the number of new facilities 

that would be added in a year at a given 

major source threshold for a source or 

industry category. The methodology and 

results for estimating new sources is 

described in the Technical Support 

Document, in the docket for this 

rulemaking.27

To estimate the number of 

modifications at existing major sources, 

EPA first calculated the number of 

existing facilities that would be treated 

as ‘‘major’’ sources due to their PTEbased CO2e emissions rates. At a 25,000- 

tpy CO2e permitting threshold, EPA 

estimates that about 13,600 existing 

facilities would be classified as ‘‘major’’ 

sources. Second, EPA determined the 

current rate of PSD-permitted 

modifications occurring at major 

sources nationwide, which is 

approximately 2 percent of existing 

major sources. The basis for this 

modification rate is described in a 

technical support document found in 

the docket for this rulemaking.28 Then, 

we assumed that GHG sources would 

modify at the same 2-percent rate. Based 

on this assumption, EPA estimates that 

approximately 270 modifications would 

result from a 25,000-tpy CO2e major 

source permitting threshold. 

We calculated the additional 

administrative burden in workload 

hours and costs based on the per-permit 

hourly workload estimates and costs for 

PSD permitting from the PSD ICR.29 Of 

the group of 130 new sources, we 

estimated the number of industrial 

sources and of commercial or residential 

sources. For the industrial sources, we 

assumed that permitting authorities 

would need to spend 301 hours, on a 

per-permit basis, for issuing permits that 

cover both the GHG and non-GHG 

emissions. This is the same amount of 

time that permitting authorities need to 

permit non-GHG emissions from 

industrial sources. We did not assume 

additional workload requirements for 

the GHG emissions because permitting 

authorities will have some experience 

with the emissions units, sources, and 

configurations at these facilities. Also, 

although there will be new and unique 

GHG sources to consider at some of 

these facilities, this experience should 

provide some administrative efficiencies 

in preparing and processing GHG-based 

permit applications for these facilities. 

Note that some of the 130 new sources 

would be sources that are subject to PSD 

only because of their GHG emissions. 

We estimate that the permitting 

authorities would need to spend the 

same amount of time and money on 

these permits, on a per-permit basis, as 

the authorities do on new sources of 

non-GHG emissions. For the commercial 

or residential sources, we assumed that 

permitting authorities would require 20 

percent of the time for industrial 

sources, or 60 hours, because these 

sources tend to be less complex than 

industrial sources. 

The next group of permittees is the 

270 GHG sources that are subject to PSD 

each year because they undertake 

modifications. For modifications 

involving industrial sources, we 

assumed that permitting authorities 

would need to expend 301 hours, the 

same as for new sources; for 

modifications involving commercial or 

residential sources, we assumed 60 

hours—the same, again, as for new 

sources. 

All told, the increase in burden for 

permitting authorities from including 

sources of GHGs at a 25,000-tpy CO2e 

level, on a total national basis, would be 

approximately 112,000 staff hours at an 

additional cost of approximately $8 

million. This workload amount 

represents an increase of about 1.3 

times, or 32 percent, in the current 

burden for permitting authorities on a 

nationwide basis. We believe that this 

additional burden is manageable, but 

that it will necessarily pose some 

challenge to permitting authorities, and 

that to accommodate the additional 

burden, permitting authorities may need 

to expand their resources or seek 

efficiencies in processing permits. We 

believe that any threshold lower than 

25,000 tpy CO2e, would create undue 

administrative burdens. Thus, we 

believe that the amount of 

administrative burden attendant to a 

threshold level of 25,000 tpy CO2e is 

consistent with the administrative 

necessity case law, which, as described 

earlier, we read to limit us to depart 

from the statutory requirements to the 

smallest extent possible, consistent with 

congressional intent. 

We request specific comments on our 

estimated burden at the 25,000-tpy CO2e 

threshold and on whether the additional 

workload would be manageable to 

permitting authorities. 

We also request comment specifically 

on the assumptions we used for 

calculating the administrative burden 

from modifications. As noted earlier, 

our estimate for the number of 

modifications that would undergo PSD 

review as a result of a 25,000-tpy CO2e 

permitting threshold is based on the 

modification rate at existing major 

sources for currently regulated 

pollutants, which means that the 

estimate assumes that the modification 

rate for GHG sources is similar to that 

for sources of currently regulated 

pollutants despite the potential 

difference in types of projects and 

significance levels. We acknowledge 

that our estimates for modifications are 

highly uncertain because they rely on 

growth trends in industries and 

businesses, which are inherently 

difficult to predict, especially under 

changing economic conditions. Thus, 

there is significant uncertainty in 

applying this modification rate and 

therefore in predicting not only how 

many major sources will undergo 


pwalker on DSK8KYBLC1PROD with PROPOSALS2
55332 Federal Register / Vol. 74, No. 206 / Tuesday, October 27, 2009 / Proposed Rules 

30 ‘‘Technical Support Document for Greenhouse 

Gas Emissions Thresholds Evaluation; Air Quality 

Policy Division, Office of Air Quality Policy and 

Standards; U.S. Environmental Protection Agency’’; 

July 7, 2009. 

physical or operational changes in any 

given year, but also which of those 

changes would result in GHG emissions 

increases that would exceed a proposed 

GHG significance level. We are therefore 

requesting specific comment on our 

estimate of modification rates at major 

sources and soliciting any additional 

information and data that would 

improve our estimate of the number of 

modifications affecting GHG emissions 

at different types of source categories. 

b. Administrative Burdens Associated 

With Other Permitting Threshold Levels 

In addition to the 25,000-tpy 

threshold for CO2e, we also considered 

major source applicability thresholds for 

PSD ranging from 1,000 to 100,000 tpy 

CO2e. Using the basic analysis of new 

and modified facilities that would 

become subject to PSD review as 

described above, we estimated the 

number of new facilities and 

modifications at each of these 

thresholds. A summary of these results 

is shown in table VIII–1. The results 

shown in table VIII–1 are based on 

estimates of potential to emit, measured 

in short tons of CO2e, from affected 

facilities at each threshold level. It 

should be noted that the use of short 

tons here, while consistent with the 

units used for existing major source 

thresholds for other pollutants 

identified in the CAA and permitting 

program rulemakings, differs from the 

units of metric tons used in EPA’s GHG 

Mandatory Reporting Rule proposal. For 

consistency within the permitting 

programs, all data and discussion in this 

rule are based on short tons. 

We believe that the number of new 

permits that would be subject to PSD at 

the 10,000-tpy-and-below CO2e major 

source thresholds would not be 

administratively feasible for permitting 

authorities. For example, we estimate 

that the 10,000-tpy CO2e threshold 

would cause an approximately threefold increase in the number of PSD 

permits annually (830 compared to 280), 

resulting in an additional workload for 

permitting authorities of approximately 

187,000 hours, or an increase of about 

2.2 times over their current PSD 

workload. We believe that this increase 

in the number of PSD permits and 

workload would create insurmountable 

resource demands for permitting 

agencies in the near term, which would 

jeopardize the functioning of the PSD 

program. These time demands are due 

to not only the increase in number of 

permits but also the need to implement 

BACT determinations, GHG emissions 

evaluations, and other evaluations 

required under the PSD program for a 

wide variety of formerly unpermitted 

sources, including significant numbers 

and varieties of small manufacturing 

and commercial establishments. 

Permitting authorities would confront 

substantial challenges because the 

authorities have little experience with 

these sources and their GHG emissions. 

We request comment on our 

assessment of the impact of major 

source GHG thresholds lower than 

25,000 tpy CO2e on PSD program 

administration, including any 

additional information on the number of 

sources and modification projects that 

might be affected at these lower 

thresholds for different GHG source 

categories. We also request comment on 

our conclusion that the 10,000-tpy 

threshold (or a lower threshold) would 

be too low to sufficiently address the 

administrative concerns. 

TABLE VIII–1—ESTIMATED NUMBER OF EXISTING FACILITIES AND ANNUAL NUMBER OF NEWLY CONSTRUCTED FACILITIES

AND MODIFICATIONS POTENTIALLY SUBJECT TO PSD REVIEW AT DIFFERENT GHG MAJOR SOURCE THRESHOLDS

Major stationary source threshold level 

(tpy CO2e) 

Number of existing facilities 

exceeding 

threshold 

Number of new 

facilities that 

would exceed 

threshold 

(facilities/yr) 

Number of modifications at existing facilities that 

would exceed 

threshold 

(modifications/yr) 

1,000 ................................................................................................................................ 278,340 4,330 5,567 

5,000 ................................................................................................................................ 52,888 532 1,058 

10,000 .............................................................................................................................. 26,898 289 538 

25,000 .............................................................................................................................. 13,661 128 273 

50,000 .............................................................................................................................. 7,245 77 145 

100,000 ............................................................................................................................ 4,850 66 97 

At the 50,000-tpy CO2e threshold, we 

estimate approximately 220 PSD permit 

actions due to GHG emissions. We do 

not believe that this level of permit 

activity would challenge the capacity of 

permitting authorities to properly 

administer the PSD program to the 

extent we described above for the 

25,000-tpy CO2e threshold. As noted 

elsewhere in the legal discussion of the 

absurd results and administrative 

necessity doctrines, we are foreclosed 

from adopting higher thresholds when 

we believe a lower threshold would be 

possible to implement. We request 

comment on our assessment of the 

impact of major source GHG thresholds 

higher than 25,000 tpy CO2e on PSD 

program administration, including any 

additional information on the number of 

sources and modification projects that 

might be affected at these higher 

thresholds for different GHG source 

categories. We also request comment on 

our determination that this assessment 

supports a conclusion that the 25,000- 

tpy threshold is administrable and thus 

we do not need to adopt a threshold of 

50,000 tpy. We note that the 50,000-tpy 

level does involve about 6,400 fewer 

major sources than the 25,000-tpy level, 

including about 1,600 sources that 

would have been newly defined as 

major (e.g., landfills, hospitals, offices, 

hotels). In light of this, we specifically 

ask for comment on whether a 50,000- 

tpy level, which would exclude these 

sources, is administratively necessary. 

c. Emissions Impacts 

We also evaluated the amount of GHG 

emissions emitted by facilities that 

would be subject to PSD requirements at 

the proposed thresholds, although, 

strictly speaking, this information is not 

relevant to the administrative-necessity 

basis for selecting the proposed major 

source threshold level for CO2e. The 

objective of the emissions evaluation 

was to generally assess the extent to 

which, on a national basis, GHG 

emissions sources would be covered at 

the proposed thresholds. The basis for 

this evaluation, with a detailed 

summary of the results, is provided in 

the docket for this rulemaking.30

We estimate that a 25,000-tpy CO2e 

threshold captures approximately 68 


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percent of national CO2e stationary 

source GHG emissions (including 

approximately 87 percent of CO2). This 

emissions coverage is comparable to 

national stationary source NOX

emissions coverage of 72 percent at the 

existing PSD major source permitting 

threshold of 250 tpy NOX. Lowering the 

CO2e threshold to 10,000 tpy increases 

the amount of emissions covered by 

only 2 percent compared to the 25,000- 

tpy threshold but almost doubles the 

number of facilities covered. We 

estimate that a 10,000-tpy CO2e 

threshold would also affect 

approximately 7,000 commercial and 

multi-family residential sources. A 

50,000-tpy CO2e threshold would 

virtually eliminate all of the 

commercial/residential sector from 

being affected for GHG but would fail to 

capture some high emitters within key 

GHG categories (for example, iron/steel, 

refineries, electric generation, pulp and 

paper, petrochemical) and would reduce 

emissions coverage by about 2 percent 

compared to 25,000 tpy CO2e. A 

summary of the percentage of national 

stationary source GHG emissions 

associated with the affected facilities at 

different GHG emission thresholds is 

shown in Table VIII–2. 

TABLE VIII–2—PERCENTAGE OF NATIONAL STATIONARY SOURCE GHG EMISSIONS FROM AFFECTED FACILITIES AT

DIFFERENT GHG EMISSION THRESHOLDS

Major stationary source threshold level 

(tpy CO2e) 

Number of existing facilities 

exceeding 

threshold 

Percent of national stationary 

source GHG 

emissions 

(percent) 

1,000 ................................................................................................................................................................ 278,340 73 

5,000 ................................................................................................................................................................ 52,888 71 

10,000 .............................................................................................................................................................. 26,898 70 

25,000 .............................................................................................................................................................. 13,661 68 

50,000 .............................................................................................................................................................. 7,245 65 

100,000 ............................................................................................................................................................ 4,850 64 

Estimates of emissions coverage at 

different thresholds are not the same as 

estimates of the actual quantities of 

emissions that would be reduced 

through the PSD permitting program at 

these permitting thresholds; however, 

they do illustrate that at the proposed 

25,000-tpy CO2e source threshold, the 

most significant contributors to 

stationary source GHG emissions would 

still be covered by the PSD program as 

major sources, and therefore any 

modifications or new additions at these 

source categories would potentially be 

subject to PSD requirements, including 

BACT. 

2. Significance Levels 

With this action, we are also 

proposing a temporary, first phase GHG 

PSD significance level threshold based 

on administrative necessity. As noted 

previously, there are no existing PSD 

significance levels set for any of the 

GHG pollutants. 

Until we establish significance levels 

for these pollutants, those levels in 

effect remain at zero tpy, so that any 

physical or operational change that 

increases GHG emissions by any amount 

would constitute a modification and 

therefore would be subject to PSD. 

Thus, for any major source, any minor 

change that increases fuel combustion 

even slightly would increase GHG 

emissions and, as a result, potentially 

trigger PSD review. As with 

administrative burdens associated with 

the statutory major source PSD 

applicability threshold, the burdens 

associated with the hundreds of 

thousands of modification projects that 

would have to comply with the PSD 

program under these circumstances 

would be enormous, at least in the short 

term. They would overwhelm the 

permitting authorities as well as the 

regulated community, and would 

interfere with the issuance of PSD 

permits to sources of all types, whether 

emitting GHGs or not. 

As a result, we believe that the same 

legal doctrines of absurd results and 

administrative necessity apply for 

establishing the significance level. We 

need to phase in a significance level for 

GHGs by establishing, in the first phase, 

a reasonable significance level based on 

administrative necessity, and then by 

conducting a study and promulgating 

further rulemaking to establish the 

requirements for the second phase. 

To do so, we need information 

concerning the number of modification 

projects occurring at a facility level for 

different source categories that would 

exceed various possible significance 

levels for GHGs in any given year. 

However, it is very difficult to acquire 

or develop this information—and 

therefore there is great uncertainty in 

calculating specific administrative 

burdens associated with 

modifications—for several reasons. 

First, information is not available across 

sectors and source categories on the 

types and numbers of specific physical 

and operational changes that would 

result in emissions increases in amounts 

that can be estimated and that therefore 

can be compared to various GHG 

emissions significance levels. Second, 

there is general uncertainty in how 

many project modifications will occur 

within any given year because decisions 

on these projects are driven by facilityand sector-based growth patterns and 

business planning decisions. Lastly, 

some source categories and units that 

emit GHGs have not previously been 

subject to any type of permitting or 

reporting requirements; as a result, for 

these sources, there is very little 

historical record for use in estimating 

the number and types of projects that 

would occur at these sources and, in 

turn, establish an appropriate 

significance level for GHGs. 

Absent comprehensive information on 

the types and numbers of modification 

projects nationally that result in 

increases in GHG emissions, we are 

proposing and soliciting comment on a 

range of possible significance levels for 

CO2e. Our proposed range starts at 

10,000 tpy CO2e, which reflects, subject 

to the uncertainty noted above, our 

current estimate of what would 

constitute a GHG significance level 

below which permitting authorities 

would be unable to adequately 

administer PSD, and goes up to 25,000 

tpy CO2e, which is our proposed major 

source applicability threshold for GHGs 

under PSD. We believe that a 25,000-tpy 

CO2e significance level for GHGs would 

be the highest level we could consider 

because it is not reasonable to propose 

a significance level that is higher than 

the proposed major source threshold. 

We selected the GHG significance 

level at the lower end of the proposed 

range by analyzing inventory 


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31 ‘‘Summary of Administrative Necessity Basis 

for a CO2-e Significance Level’’; Prepared by EPA 

Staff; August 2009. 

information for key source categories 

that would have a substantial number of 

modification projects potentially subject 

to PSD permitting requirements for 

GHGs. Most importantly, depending on 

the significance level for CO2e, small 

fossil fuel-fired combustion units, 

which are numerous and ubiquitous, 

could have a substantial number of 

modifications that would be subject to 

PSD. Our threshold data analysis shows 

that almost 80 percent of the facilities 

that exceed the 25,000-tpy CO2e major 

source threshold do so because of fossil 

fuel combustion units that emit CO2. 

Also, the U.S. national GHG inventory 

shows that approximately 80 percent of 

all GHG emissions result from fossil fuel 

combustion sources. The prevalence of 

combustion units across all affected 

sectors, and the dominant contribution 

of CO2 fuel combustion-related 

emissions to their GHG emissions total, 

leads us to conclude that an 

administrative necessity-based 

significance level for CO2e should be 

based on modifications that involve 

these combustion units. 

Thus, we analyzed sales data for two 

of the most affected categories of units: 

Boilers and stationary engines. Our 

analysis indicates that, on a yearly basis, 

almost 2,000 of these new combustion 

units would emit more than 10,000 tpy 

CO2e. The exact number of PSD permits 

that would result from modifications 

involving these new emissions units 

would likely be less than 2,000, 

depending on whether these units are 

located at a major source facility, 

whether multiple units are aggregated at 

one facility or the units are placed at 

different facilities, and whether they are 

considered new additions/new capacity 

or one-for-one replacements. However, 

we believe these data on combustion 

unit sales suggest that the significance 

level should be at least 10,000 tpy CO2e 

because, while the estimated population 

of new units with the potential to trigger 

PSD is something below 2,000 per year, 

that is still likely well above the current 

number of modifications (fewer than 

300) that are currently subject to PSD 

each year. Any lower level would risk 

enormous numbers of permit 

applications that would be 

administratively impossible to process, 

and therefore we do not propose a GHG 

significance level lower than 10,000 tpy 

CO2e. Further support for the 10,000-tpy 

CO2e level is the fact that the 

combustion units in the industrial 

sector that emit GHGs at this rate tend 

to be larger units: boiler-type units with 

an approximate heat input rating of 15– 

20 MMBtu/hr (depending on fuel type); 

and stationary internal combustion (IC) 

or compression ignition (CI) engines 

with a rating of greater than 2,000 

horsepower. Units of this size provide a 

good representation of combustion units 

utilized in the industrial sector that 

should be subject to PSD. At the same 

time it does not capture an enormous 

number of very small combustion units 

that would overwhelm permitting 

authorities from an administrative 

standpoint. For example, using the same 

sales information referenced above on 

combustion units, we estimate that 

approximately 29,000 new boilers and 

stationary engines would exceed a 250- 

tpy CO2e level. A summary of our 

significance level analysis for CO2e is 

provided in the docket for this 

rulemaking.31

Although our significance level range 

is driven by our analysis of CO2

combustion units, we believe that the 

level of 10,000 tpy CO2e should be 

administratively feasible for other 

sources of GHG emissions. Our 

threshold data analysis shows 

approximately 3,000 facilities that 

would have the potential to emit 

amounts of non-CO2 GHGs exceeding a 

25,000-tpy CO2e major source threshold 

based on their non-CO2 emissions alone. 

Although this estimate is not directly 

related to the number of possible 

modification projects that may exceed a 

10,000-tpy CO2e significance level for 

non-CO2 emissions alone, this estimate 

provides a relative sense of the number 

of facilities emitting non-CO2 emissions 

at rates that approximate the 10,000-tpy 

CO2e level, only a portion of which may 

actually undergo modifications that 

would potentially be subject to PSD 

review. For example, if the 3,000 

facilities are assumed to have a 

modification rate of 2 percent, as 

described above, and each modification 

results in emissions increases of at least 

10,000 tpy CO2e (in, again, non-CO2

GHG emissions), then approximately 60 

modification projects would come 

under PSD review just for principally 

non-CO2 sources. This alone would be 

an approximate 20- to 25-percent 

increase above the current level of 280 

annual permits. We believe that an 

additional PSD permit increase of this 

magnitude, on top of the modifications 

resulting from CO2 emissions from 

combustion-related projects, may stretch 

the capacity of, but may not necessarily 

create an unadministrable burden for, 

permitting authorities. 

Although we believe 10,000 tpy CO2e 

represents a reasonable lower bound for 

the range we are proposing for the GHG 

significance level, we specifically 

request comments on whether: (1) A 

level lower than 10,000 tpy CO2e would 

still be administratively feasible; (2) a 

level higher than 25,000 CO2e is 

necessary to avoid an administratively 

overwhelming number of modification 

projects becoming subject to PSD 

permitting due solely to their GHG 

emissions; and (3) there are data 

suggesting an appropriate number we 

should select within the 10,000- to 

25,000-tpy range. In suggesting 

alternative thresholds, we request that 

commenters submit any available 

information and data that would allow 

us to better characterize the number and 

types of modification projects that 

would become subject to the PSD 

program at different GHG significance 

levels and for different types of source 

categories. 

We note that this basis contrasts with 

that of our prior significance levels 

determinations, which were based on de 

minimis emissions levels. 

D. What is the rationale for selecting the 

proposed first phase GHG permitting 

threshold for title V? 

With this action, we are proposing a 

temporary, first phase GHG title V major 

source threshold of 25,000 tpy CO2e, 

based on the administrative imperatives 

that underly both the absurd results and 

administrative necessity legal doctrines. 

As noted earlier, if we do not 

establish a different ‘‘major source’’ 

level under title V for GHG sources, 

those sources would become subject to 

the statutory 100-tpy threshold. Under 

these circumstances, we estimate that 

6.1 million sources would have to 

comply with the title V permitting 

program. The resulting administrative 

burdens would be enormous in the short 

term and would overwhelm the 

permitting authorities, as well as posing 

severe burdens on the regulated 

community. Accordingly, we need to 

phase in title V applicability by 

establishing, in the first phase, an 

administrable permitting threshold, and 

then by conducting a study and 

promulgating further rulemaking to 

establish the requirements for the 

second phase. 

The criterion for establishing the title 

V major source threshold is to reduce 

administrative burdens to the point at 

which the title V program can be 

implemented. Our analyses, discussed 

in detail later in this preamble, establish 

this threshold at 25,000 tpy CO2e. 

Although this level would likely see an 

increase in the volume of title V 

permitting, compared to current 

permitting levels, and although this 

increase would pose some challenges to 


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32 ‘‘Technical Support Document for Greenhouse 

Gas Emissions Thresholds Evaluation; Air Quality 

Policy Division, Office of Air Quality Policy and 

Standards; U.S. Environmental Protection Agency’’; 

July 7, 2009. 

permitting authorities, EPA believes that 

this increase would not exceed the 

capacity of permitting authorities to 

implement the program. 

The title V permitting program 

requires all existing major sources to 

obtain operating permits, as compared 

to the PSD program, which requires 

permits only for newly constructed 

major source facilities and major 

modifications at existing major sources. 

Therefore, to evaluate permitting 

thresholds for title V, we analyzed the 

number of existing facilities that would 

exceed a given GHG threshold. We 

considered alternative major source 

thresholds ranging from 1,000 to 

100,000 tpy CO2e. 

Our estimates for the existing number 

of facilities whose emissions would 

exceed different GHG thresholds are 

summarized in table VIII–1 and 

discussed in more detail in the 

Technical Support Document in the 

docket for this rulemaking.32 For 

comparison purposes, note that 

currently there are approximately 

14,700 title V operating permits 

nationwide. We estimate that at a 

25,000-tpy CO2e permitting threshold, 

about 13,600 existing facilities would be 

classified as ‘‘major sources’’ for their 

PTE-based CO2e emissions. As 

discussed later in this preamble, these 

13,600 facilities present additional 

workload demands on permitting 

authorities, either because they are not 

currently required to obtain a title V 

permit (because their non-GHG 

emissions fall below the ‘‘major source’’ 

threshold) or because, although they 

already are required to obtain a title V 

permit (due to their non-GHG 

emissions), their permits would need to 

be revised to cover their GHG emissions. 

In contrast, at a 10,000-tpy CO2e 

threshold the number of existing 

facilities exceeding the threshold jumps 

to almost 27,000. At a 50,000-tpy CO2e 

threshold, the number of existing 

facilities exceeding the threshold falls to 

about 7,200. We believe, based on these 

estimates, that a 25,000-tpy CO2e major 

source threshold is appropriate because 

it renders the title V program 

administrable, albeit with additional 

workload requirements. As discussed 

later in this preamble, as we move 

below the 25,000-tpy CO2e threshold, 

we believe the administrative burdens 

related to the increasing number of 

facilities covered, as well as to the 

variation in the type of facilities 

covered, become insuperable. At both 

the 50,000- and 100,000-tpy CO2e 

thresholds, however, we do not believe 

that the potential level of permit activity 

would fill the capacity of permitting 

authorities to properly administer the 

title V program, and similar to PSD 

considerations, we believe it would 

potentially exclude some high-emitting 

facilities within key GHG source 

categories. 

Although we believe a 25,000-tpy 

CO2e threshold would add an additional 

permitting burden to permitting 

authorities, we believe that this 

additional burden could be adequately 

administered. We expect that many of 

the 13,600 existing facilities that would 

exceed the proposed 25,000-tpy CO2e 

threshold—the majority of which 

consist of electric generating units and 

industrial facilities—already have a title 

V operating permit for other regulated 

pollutants, and thus would potentially 

require only a permit revision or 

modification to address GHGs. We 

believe that these permit revisions or 

modifications under title V would 

initially be limited due to the lack of 

new applicable GHG requirements to 

include in the permits, but would 

increase in complexity and content as 

facilities move through PSD permitting 

processes and as other possible 

stationary source requirements emerge. 

In addition, with a 25,000-tpy CO2e 

threshold, some of the 13,600 existing 

facilities are not currently subject to title 

V requirements and therefore would 

require new title V permits. These 

facilities constitute primarily additional 

landfills (we estimate approximately 

1,700 landfills may be added to the title 

V program) and some large commercial 

facilities, primarily large hospitals. 

These facilities number approximately 

800, but the number of new permits 

they would need would be less than this 

because approximately 180 are currently 

subject to permitting under title V for 

pollutants currently subject to 

regulation under the Act. Permitting the 

newly subject sources would not solely 

involve GHG requirements but may also 

involve other pollutants emitted by the 

source. 

We estimate that the combination of 

title V permit revisions, modifications, 

and new permits that would result from 

a 25,000-tpy CO2e applicability 

threshold would require an estimated 

additional 492 FTEs by permitting 

authorities nationwide, or an estimated 

50-percent increase over current title V 

staffing levels, to meet the initial 

permitting requirements that would 

apply at the time title V applicability is 

triggered for GHG sources. We do not 

believe this 50-percent increase in 

resources would be administratively 

impossible to achieve, given that title V 

is self-funded, and that there are 

efficiencies gained in revisiting existing 

title V permits and sources with which 

the permitting staff are familiar. 

In contrast, at a 10,000-tpy CO2e 

threshold, we estimate that an 

additional 1,357 FTEs (an estimated 

135-percent increase over current title V 

staffing levels) would be required by 

permitting agencies nationwide (again, 

based on initial permitting 

requirements). In addition, there would 

be substantial influx of new title V 

permits—greater than 13,000—that 

would need to be processed and issued. 

This would include over 7,000 newly 

permitted commercial and residential 

sources covering a wide variety of 

source types, including office buildings, 

retail malls, hotels, apartment buildings 

and educational facilities. The new 

variety of sources included at the lower 

threshold also would require additional 

training for permitting staff to become 

familiar with the configuration and 

emissions from those sources. For these 

reasons, we believe that at threshold 

levels below 25,000 tpy CO2e, even 

considering the capability of permitting 

authorities to eventually add additional 

staff funded through permitting fees, 

permitting authorities would not be 

capable of ensuring reasonable 

processing times for both new permits 

and revisions resulting from the 

additions of GHG emitters to the 

program. 

We request specific comment on our 

estimated burden at the 25,000-tpy CO2e 

major source threshold for title V and on 

whether the additional workload would 

be manageable to permitting authorities. 

We also request specific comment on 

our assessments of the impact of title V 

major source GHG thresholds higher 

and lower than 25,000 tpy CO2e on title 

V program administration, including 

any additional information on the 

number of sources affected and the 

permitting burdens created at these 

thresholds. We further request comment 

on our conclusion that the 10,000-tpy 

threshold (or a lower threshold) would 

be too low to address the administrative 

necessity concerns, that the 25,000-tpy 

threshold is administrable, and that 

there is therefore no need to adopt a 

threshold of 50,000 tpy. 

There are additional policy and 

programmatic considerations that, while 

not part of the administrative-necessity 

basis, also support establishing the 

major source GHG threshold for title V 

at 25,000 tpy CO2e. Most importantly, 

this level would result in consistency 

between the PSD and title V permitting 

threshold for GHG sources. Historically, 

there has been a strong measure of 


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consistency in the PSD and title V 

permitting levels since there is a 

generally applicable 100-tpy ‘‘major 

source’’ applicability threshold in title V 

and there is a 100-tpy ‘‘major emitting 

facility’’ applicability threshold applied 

in PSD for sources in 28 key industrial 

source classifications. In addition, there 

is a strong programmatic incentive for 

the programs to share a common 

permitting threshold. Because at least 

initially GHG requirements from the 

PSD permitting process would 

constitute the only applicable 

requirements to be included in the title 

V permits for many sources, a title V 

permitting threshold lower than the PSD 

threshold would create numerous 

‘‘empty’’ or ‘‘hollow’’ permits, that is, 

permits that do not include any 

applicable requirements, and many 

previously unpermitted commercial 

sources would be required to obtain 

these hollow permits. Permits hollow in 

this respect may be viewed as 

unnecessary and wasteful by the 

permitting authorities and regulated 

community. Further, requiring such 

permits may be at tension with a 

primary purpose of title V to promote 

compliance and facilitate enforcement 

by gathering into one document the 

requirements that apply to a particular 

source. See CAA Section 504(a) (each 

title V permit must contain terms 

‘‘necessary to assure compliance with 

applicable requirements’’ of the CAA), 

H.R. Rep. No. 101–490, at 351 (1990) 

(‘‘It should be emphasized that the 

operating permit to be issued under this 

title is intended by the Administration 

to be the single document or source of 

all of the requirements under the Act 

applicable to the source.’’). 

E. How will EPA assess the GHG 

permitting thresholds in the first phase 

of the tailoring program, and how will 

EPA develop the second phase? 

1. Assessment To Be Performed Within 

5 Years Following Promulgation of the 

First Phase 

We consider the actions proposed in 

this rulemaking to set higher GHG major 

source applicability thresholds for PSD 

and title V, and to establish a GHG PSD 

significance level, as interim measures 

that will need to be reassessed in terms 

of their administrative necessity. 

Therefore, as part of this proposed 

action, we are committing to evaluate 

the effectiveness of the first phase of the 

tailoring program, which consists of the 

proposed GHG thresholds, to enable 

PSD and title V permitting authorities to 

adequately administer their programs 

with the inclusion of GHG emissions 

sources. We are proposing to complete 

this evaluation within 5 years from the 

effective date of this final rulemaking. 

The results of this study will form the 

basis for further regulatory action that 

will constitute the second phase, which 

may include continuing or lowering the 

GHG applicability thresholds for PSD 

and/or title V set in the first phase, 

adoption of other streamlining 

techniques that more accurately reflect 

the administrative capabilities of 

permitting authorities to address GHG 

sources during the second phase, and/ 

or taking other actions consistent with 

the goal of expeditiously meeting CAA 

requirements in light of the 

administrative burden that remains at 

that time. 

We believe a 5-year period is 

necessary for the evaluation of the first 

phase of the tailoring program to 

provide an adequate period of time for 

permitting authorities to implement the 

proposed GHG permitting thresholds 

and for a sufficient record of 

implementation experience to be 

compiled. We also believe a number of 

important activities undertaken by EPA 

and the States over the 5-year evaluation 

period could potentially impact 

permitting authorities’ administrative 

capabilities to address GHG emissions 

sources, and we need sufficient time to 

implement those activities and assess 

that impact. These activities will 

include the following: 

• The first activity is the development 

of streamlining tools to specifically 

address GHG sources. As discussed in 

section VII.A of this preamble, several 

permit streamlining techniques may 

have applications for GHG emissions 

sources. However, EPA needs an 

estimated 3 to 4 years to fully develop 

some of these techniques. Because many 

of these techniques are source-specific, 

or at least source category-specific—e.g., 

presumptive BACT determinations— 

EPA may not be able to develop them 

for all affected sources within the 

evaluation period. However, we 

anticipate that EPA may make sufficient 

progress on enough streamlining 

techniques to impact the administrative 

capabilities of permitting authorities to 

address GHG emissions sources. 

• The second activity during the 5- 

year period involves the ability of 

permitting authorities to add more staff 

to their permitting programs, especially 

the title V program for which additional 

fees for GHG emissions may support the 

addition of new staff. Based on the 

summary of State data on impacts of 

GHG emissions permitting, it is likely 

that even under the best-case scenarios, 

at least a 3- to 4-year period is necessary 

for most permitting authorities to add 

and adequately train staff for permitting 

duties involving GHG emitters. 

Therefore, we expect that the impact of 

increased staffing on the administrative 

capabilities of permitting authorities 

will be better known by the fifth year of 

the threshold evaluation period. 

• The third activity is the collection 

of more detailed emissions information 

resulting from implementation of the 

proposed GHG mandatory reporting 

rule. Many permitting authorities have 

not had any experience to date with 

quantifying or evaluating emissions and 

controls of GHG source categories. 

EPA’s proposed GHG mandatory 

reporting rule will produce significant 

information about key GHG emissions 

source categories that will help 

permitting authorities and EPA better 

understand the characteristics and 

quantities of GHG emissions, 

particularly at the facility level. 

Reporting facilities will begin to submit 

data in the year 2011, and we expect a 

substantial record of emissions data to 

be collected during the evaluation 

period. We believe that these facilitylevel GHG data will be an important 

component to increasing permitting staff 

knowledge of GHG emissions sources 

and will have a positive impact on the 

permitting staff’s ability to address GHG 

emissions in their programs. We also 

believe this information will provide 

additional insight into the level and 

types of GHG emissions occurring at 

different facility types that should 

support EPA’s reevaluation of the first 

phase GHG permitting thresholds. 

• The fourth activity during the 5- 

year assessment period is the 

development of background information 

on control technologies and costs for 

GHG emissions source categories. As 

discussed in more detail in section X of 

this preamble, one of the administrative 

constraints is the fact that permitting 

authorities must apply BACT to GHG 

sources subject to PSD, but that 

endeavor would be highly resourceintensive. The 5-year assessment period 

will allow EPA and the States to 

develop information to evaluate GHG 

control techniques and costs, which, in 

turn, will be the basis for BACT 

determinations involving GHG 

emissions sources. 

The 5-year period will serve other 

purposes, too, including allowing EPA 

to analyze the impacts of permitting 

smaller GHG sources to develop 

methods to mitigate those impacts. To 

date, EPA has collected very little 

information on the site-specific 

configuration and GHG emissions 

characteristics of many of the smaller 

industrial and commercial source 

categories. As a result, it is difficult to 

fully assess the impact of GHG 


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emissions permitting on these sources. 

We believe the 5-year evaluation period 

will provide EPA the opportunity to 

develop a more comprehensive profile 

of these smaller GHG source categories, 

which will allow a better assessment of 

the impacts on the small business 

community and, in turn, ways to 

mitigate those impacts. 

Although we believe there are 

sufficient reasons to justify a 5-year 

evaluation period, we ask for comment 

on whether the activities described 

above—or at least some portion of them 

sufficient to begin administering permit 

programs for significant numbers of 

sources below the proposed 25,000-tpy 

CO2e threshold—could be accomplished 

in a shorter time frame than our initial 

estimates. For example, we ask for 

comment on whether 3 years would be 

a sufficient evaluation period. We are 

especially interested in understanding 

the basis for such an alternative time 

period and what activities would need 

to occur during the period. 

We further note that, for the proposed 

applicability thresholds as described 

above, we did consider a step-down 

approach for phasing in GHG permitting 

thresholds for PSD and title V programs. 

Under a step-down approach, 

applicability thresholds for GHGs would 

be lowered to predetermined step-down 

levels at specified intervals, such as 

every 2 years or more. However, we 

rejected the step-down approach on the 

basis that, without having established 

sufficient information on source-specific 

emissions and absent a record of 

experience with permitting GHG 

emissions sources on the part of 

permitting authorities, we were not in 

position to establish and support 

specific step-down thresholds. We 

believe that establishing further specific 

step-downs prior to evaluating the 

impact of the proposed GHG thresholds 

included in this rulemaking, as well as 

the impact of the proposed streamlining 

techniques, would prematurely 

determine what is administratively 

feasible for permitting authorities to 

undertake in terms of permitting GHG 

sources. Nonetheless, in light of the 

necessity of ultimately achieving 

compliance with the statute, we solicit 

comment on whether such an approach, 

coupled with regular examination of 

whether the administrative situation is 

improving, is an appropriate way to 

achieve compliance while taking into 

account the administrative imperatives. 

If so, we ask for suggestions on how we 

could structure such an approach (e.g., 

when future phases should begin, how 

we should determine the appropriate 

thresholds for each phase, etc.) 

2. Rulemaking Based on Threshold 

Evaluation for Second Phase of 

Tailoring Program 

We propose to commit, by rule, that 

by 6 years after promulgation of the first 

phase of the tailoring program, and 

following completion of the threshold 

evaluation study, we will promulgate a 

follow-up rulemaking that will establish 

the second phase of the program. This 

rulemaking will either confirm the 

continued use of the GHG permitting 

thresholds implemented for the first 

phase, or promulgate alternative GHG 

permitting thresholds or other 

streamlining techniques. The results of 

the 5-year threshold evaluation study 

will form the basis for determining what 

thresholds or other techniques will be 

promulgated in the second phase 

rulemaking. 

At this time, we cannot anticipate 

specifically what the second phase of 

this tailoring program will consist of. 

The situation that we confront is 

unprecedented. However, we believe 

the process of establishing the first 

phase and then assessing it, combined 

with the development of other 

streamlining techniques to the extent 

possible, will provide a sufficient basis 

for EPA to propose a rulemaking to 

establish the second phase. Of course, 

that rulemaking will provide ample 

opportunity for affected parties to 

comment on their experiences with the 

administrative burden at current GHG 

permitting thresholds and to make 

recommendations for any changes in the 

thresholds, for adoption of other 

streamlining techniques, and/or for 

actions consistent with the goal of 

expeditiously meeting CAA 

requirements in light of the 

administrative burden that remains at 

that time. 

IX. What would be the economic 

impacts of the proposed rule? 

This section of the preamble examines 

the economic impacts of the proposed 

rule including the expected benefits and 

costs of the proposed rule on affected 

entities. This proposed rule lifts, for a 

period of 6 years, the burden to obtain 

a title V operating permit required by 

the CAA for smaller sources of GHGs 

and the burden of PSD requirements for 

smaller new or modifying sources of 

GHGs. Thus, this rule provides 

regulatory relief rather than regulatory 

requirements for these smaller GHG 

sources for a period of 6 years. For 

larger sources of GHGs, there are no 

direct economic burdens or costs as a 

result of this proposed rule, because 

requirements to obtain a title V 

operating permit or to adhere to PSD 

requirements of the CAA are already 

mandated by the Act and by existing 

rules and are not imposed as a result of 

this proposed rulemaking. 

The regulatory impact analysis (RIA) 

conducted for this proposed rule 

provides details of the benefits or 

regulatory relief that smaller GHG 

sources will experience in terms of costs 

avoided as a result of this proposed rule 

and the potential for social costs in 

terms of foregone environment benefits 

during this 6-year period. Complete 

details of the regulatory impact analysis 

conducted for this proposed rule may be 

found in the document ‘‘Regulatory 

Impact Analysis for the Proposed 

Greenhouse Gas Tailoring Rule,’’ in the 

docket for this rulemaking. 

This rulemaking provides permitting 

thresholds for sources of GHGs that 

exceed levels contained in the CAA. 

Specifically, sources with the potential 

to emit less than 25,000 tpy CO2e are 

not required to obtain an operating 

permit or PSD permit for a period of at 

least 5 years at which time a study will 

be conducted and the decision revisited 

after 6 years. In the 6 years following 

promulgation of this rule, the EPA 

estimates that, compared to baseline 

estimates that do not include the effects 

of this rule, over six million sources of 

GHG emissions will be allowed to 

operate without a title V operating 

permit and tens of thousands of new 

sources or modifying sources per year 

will not be subject to PSD requirements 

for GHGs. For this large number of 

smaller sources, this rule alleviates the 

regulatory burden associated with 

obtaining an operating or PSD permit or 

complying with NSR BACT 

requirements. Therefore, this proposed 

action may be considered beneficial to 

these small entities as it provides relief 

from regulation that would otherwise be 

required. 

This decision does potentially have 

environmental consequences in the 

form of lesser emission reductions 

during the 6-year period of time. Given 

that sources between 250 and 25,000 

tons per year account for an estimated 

7 percent of the six directly emitted 

GHGs nationally from industrial, 

commercial, and residential source 

categories, while representing over 95 

percent of the total number of sources 

potentially requiring an operating or 

PSD permit for GHGs under current 

permitting thresholds in the CAA, the 

EPA believes this is a prudent decision. 

Requiring such a large number of small 

sources to obtain permits for the first 

time would overtax the permitting 

authorities’ abilities to process new 

permits without commensurate benefits. 

Moreover, as described in section VII.C 


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of this preamble, reductions from these 

small sources will still be occurring, 

notwithstanding the fact that permitting 

requirements would not apply to them. 

These smaller sources of GHG will be 

the focus of voluntary emission 

reduction programs and energy 

efficiency measures that lead to 

reductions in GHGs. The EPA will also 

reevaluate this decision after a 6-year 

period and complete a study of the 

implications of permitting smaller GHG 

sources for those sources and permitting 

authorities. 

A. What entities are affected by this 

rule? 

As previously stated, this proposed 

rule is essentially providing regulatory 

relief and does not include direct 

regulatory provisions for any industrial, 

commercial, or residential entities. An 

analysis is presented for smaller sources 

expected to experience regulatory relief 

from this rule. This proposal increases 

the threshold to obtain a title V 

operating permit to PTE levels of 25,000 

tpy CO2e or greater annual emissions. 

New sources of GHG emissions with the 

potential to emit less than 25,000 tpy 

CO2e that would otherwise be subject to 

PSD are not required to obtain a PSD 

permit or to comply with BACT 

regulatory requirements as a result of 

this proposed rule. The significance 

levels for major modifications at sources 

of GHG emissions are also increased in 

this proposal allowing small sources to 

forego obtaining a PSD permit and to 

avoid BACT regulatory requirements, 

when the projected emissions increase 

from such modification is less than the 

PSD significant level (with the 

promulgated level to be selected from a 

proposed range of values between 

10,000 and 25,000 tpy CO2e). The 

industry, agricultural, residential and 

commercial categories anticipated to 

experience regulatory relief are shown 

in table IX–1. As table IX–1 shows, this 

proposal lifts permitting requirements 

for over six million potential title V 

sources and tens of thousands of 

potential PSD new sources that would 

be otherwise required by the CAA to 

obtain permits. 

TABLE IX–1—ESTIMATED NUMBER OF AFFECTED SOURCES EXPERIENCING REGULATORY RELIEF* 

Sector 

Number of sources experiencing regulatory relief 

Title V New PSD 

(annually) 

Electricity .......................................................................................................................................................................... 161 20 

Industrial .......................................................................................................................................................................... 156,545 303 

Energy .............................................................................................................................................................................. 3,644 35 

Waste Treatment ............................................................................................................................................................. 1,431 0 

Agriculture ........................................................................................................................................................................ 37,351 299 

Commercial ...................................................................................................................................................................... 1,354,760 12,034 

Residential— 

Multifamily ................................................................................................................................................................. 610,340 6,397 

Residential— 

Single Family ............................................................................................................................................................ 3,925,000 515 

Totals ................................................................................................................................................................. 6,089,232 19,603 

* Number of sources is determined on a potential to emit basis for small sources below 25,000 tpy CO2e threshold. Estimates for PSD sources 

are for newly constructed facilities and do not include modifications at existing facilities that may also be subject to PSD requirements. 

B. What are the estimated benefits to 

small sources due to regulatory relief? 

EPA estimated the benefits or avoided 

costs for sources that are likely to 

experience regulatory relief from this 

proposal. This analysis focuses upon the 

burdens that are being lifted for smaller 

sources as a result of this proposed rule. 

In addition, an accounting of the 

benefits from this proposal as measured 

by avoided costs for State, local, and 

tribal permitting authorities is provided. 

These avoided costs relate specifically 

to information collection costs or 

burden costs postponed for smaller 

sources of GHG emissions otherwise 

required to obtain an operating permit 

under title V or required to modify an 

existing permit to address GHG 

emissions. Avoided costs shown also 

include information collection 

requirements for additional PSD permits 

postponed for new or modifying smaller 

sources of GHGs, as well as the avoided 

costs to State, local and tribal permitting 

authorities. 

1. What are estimated benefits or 

avoided burden costs for title V permits? 

Table IX–2 shows that the estimated 

first-year information collection cost 

avoided as a result of this proposal by 

an industrial source required to obtain 

a title V operating permit is 

approximately $46.4 thousand (2007$) 

per permit. The EPA estimates that over 

195 thousand sources will avoid 

incurring these permitting costs for a 

period of at least 6 years as a result of 

this proposal. The avoided burden cost 

to obtain a new commercial or multifamily residential operating permit is 

estimated to be approximately $5.0 

thousand (2007$) per permit with over 

5.9 million sources benefitting by not 

incurring these costs due to this 

proposed rule. In total, EPA estimates 

that more than $38 billion (2007$) in 

expenditures relating to title V 

permitting will be avoided by small 

sources of GHG for a period of 6 years 

as a result of this proposal. Much of this 

burden would have been incurred 

during the first year following the lightduty vehicle rule because sources have 

1 year from the date of becoming subject 

to title V. However, some ongoing 

burden for new sources coming into the 

program would be incurred each 

subsequent year. State, local, and tribal 

permitting authorities will also benefit 

in terms of avoided permitting 

administrative costs by over $15 billion 

(2007$) as a result of the decisions 

proposed in this action. This burden 

would not all have been incurred during 

the first year following the light-duty 

vehicle rule, but much of it would 

generally have been incurred within the 

first 2 to 3 years. This is because under 

the part 70 regulations, permitting 

authorities are required to act on 

applications within 18 months of 

receipt. There would also be some 

ongoing burden in each subsequent year 

due to new sources coming into the 

program. 


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33We note that some of the sources that remain 

subject to permitting above the proposed threshold 

in this rule may nonetheless be small businesses. 

Elsewhere in this preamble, we discuss our intent 

to convene a discretionary panel to examine the 

small business impacts of GHG regulation through 

PSD, although such impacts are not imposed as a 

result of this proposed action. The RIA provides a 

discussion of these impacts for informational 

purposes. 

TABLE IX–2—REGULATORY RELIEF PROVIDED FOR SMALL GHG SOURCES AND PERMITTING AUTHORITIES

Program/affected entities 

Small GHG sources not covered during 

first phase < 25,000 tpy 

Per-permit 

cost 

(2007$) 

Number of 

permits 

Total cost 

(millions 

2007$) 

Source 

Title V: 

New Industrial ................................................................................................................................... 46,350 195,895 9,079.7 

New Commercial/Residential ........................................................................................................... 4,986 5,956,513 29,699.2 

Subtotal Title V Permits ............................................................................................................ .................... .................... 38,778.9 

PSD Permits: 

New Industrial ................................................................................................................................... 84,530 3,299 278.9 

New Commercial/Residential ........................................................................................................... 16,887 37,197 628.1 

Subtotal PSD Permits ............................................................................................................... .................... .................... 907.0 

Total Source Costs ............................................................................................................ .................... .................... 39,685.9 

Permitting Authority 

Title V: 

New Industrial ................................................................................................................................... 19,688 195,895 3,856.8 

New Commercial/Residential ........................................................................................................... 1,978 5,956,513 11,781.9 

Subtotal Title V Permits ............................................................................................................ .................... .................... 15,638.7 

PSD Permits: 

New Industrial ................................................................................................................................... 23,243 3,299 76.7 

New Commercial/Residential ........................................................................................................... 4,633 37,197 172.3 

Subtotal PSD permits ................................................................................................................ .................... .................... 249.0 

Total Permitting Authority Costs ........................................................................................ .................... .................... 15,887.7 

Total Source and Permitting Authority Costs .................................................................... 184.3 .................... 55,573.6 

Notes:(1) Costs shown in ‘‘Sources Not Covered During First Phase’’ represent estimates of the regulatory burden relief proposed by this rule. 

Title V operating permit costs represent one time costs, but these permits are subject to renewals every 5 years. New and modified PSD permits 

reflect the estimated annual number of new and modifying sources requiring permits and the associated costs. 

(2) Sums may not add due to rounding. 

(3) All costs are shown in 2007 dollars. 

2. What are avoided burden costs 

associated with regulatory relief for 

small PSD sources? 

Table IX–2 summarizes the estimated 

burden costs avoided by sources and 

permitting authorities with this tailoring 

rule. The estimated avoided burden or 

reporting and recordkeeping cost 

associated with requiring new industrial 

sources to obtain permits is estimated to 

be $84.5 thousand for new or modified 

industrial sources and $16.9 thousand 

for new or modified commercial or 

multi-family residential sources (2007$). 

This represents avoided annual costs of 

over $900 million (2007$) for new and 

modifying small sources of GHG. State, 

local, and tribal permitting authorities 

are expected to avoid $249 million 

(2007$) annually in administrative 

expenditures associated with 

postponing PSD program requirements 

for small GHG sources. 

C. What are the economic impacts of 

this rulemaking? 

This proposed rulemaking does not 

impose economic burdens or costs on 

any sources or permitting authorities, 

but should be viewed as regulatory 

relief for smaller GHG emission sources 

and for permitting authorities. Although 

sources above the thresholds proposed 

in this rule will become subject to 

permitting when the light-duty vehicle 

rule is promulgated, those impacts are 

not attributable to the present 

rulemaking. Rather they are mandated 

by the CAA and existing regulations and 

automatically take effect independent of 

this proposal. 

In addition to considering the 

regulatory relief expected for affected 

entities as a result of this proposed rule, 

the EPA considered the impact of this 

rulemaking to small entities (small 

businesses, governments and non-profit 

organizations) as required by RFA and 

SBREFA. For informational purposes, 

the RIA includes the Small Business 

Administration (SBA) definition of 

small entities by industry categories for 

stationary sources of GHGs and 

potential regulatory relief from title V 

and NSR permitting programs for small 

sources of GHG. Since this rule does not 

impose regulatory requirements but 

rather lessens the regulatory burden of 

the CAA requirements to smaller 

sources of GHGs, no economic costs are 

imposed upon small sources of GHGs as 

a result of this proposed rule. Rather 

this proposal provides regulatory relief 

for small sources. These avoided costs 

or benefits accrue because small sources 

of GHGs are not required to obtain a title 

V permit and new or modifying small 

sources of GHGs are not required to 

meet PSD requirements for a period of 

6 years. Some portion of the small 

sources may be small entities, and these 

entities will benefit from the regulatory 

relief proposed in this rule.33

D. What are the costs of the proposed 

rule for society? 

EPA examined the social costs of this 

proposed rule. These social costs 


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represent the foregone environmental 

benefits that would occur if regulatory 

relief were offered to small sources of 

GHG emissions as proposed. This 

proposal is one such regulatory relief 

since it increases the emissions 

thresholds for the title V and PSD 

programs, as they apply to sources of 

GHG emissions, to levels above those in 

the CAA. In this preamble section, the 

benefits or avoided regulatory costs of 

such relief are discussed, but there is 

also a social cost imposed by such relief 

because this rule may forego some of the 

possible benefits associated with title V 

and PSD programs for sources of GHG 

emissions below 25,000 tpy CO2e but 

above the statutory 100/250 tpy levels. 

These benefits are those attributed to 

title V and PSD permitting programs in 

general. These benefits are based upon 

the relevance of these programs to 

policymaking, transparency issues, and 

market efficiency, and therefore are very 

difficult to quantify and monetize. For 

title V, they include the benefits of 

improved compliance with CAA 

requirements that stem from (1) 

improved clarity regarding applicability 

of requirements, (2) discovery and 

required correction of noncompliance 

prior to receiving a permit, (3) 

improving monitoring, recordkeeping, 

and reporting concerning compliance 

status, (4) self-certification of 

compliance with applicable 

requirements initially and annually, and 

prompt reporting of deviations from 

permit requirements, (5) enhanced 

opportunity for the public to understand 

and monitor sources’ compliance 

obligations, and (6) improved ability of 

EPA, permitting authorities, and the 

public to enforce CAA requirements. 

However, it is important to remember 

that a title V permit does not add new 

requirements for pollution control itself, 

but rather collects all of a facility’s 

applicable requirements under the CAA 

in one permit. Therefore, the 

compliance benefits above are less when 

title V permits contains few or no CAA 

applicable requirements. During the first 

phase under this proposal, when the 

title V threshold is 25,000 tpy, we 

expect that the vast majority of sources 

excluded from title V would be sources 

that have no CAA applicable 

requirements for GHG emissions and 

few or no requirements for other 

pollutants because their emissions of 

those pollutants are so small. For this 

reason while it is extremely difficult to 

measure the degree of improved 

compliance, if any, that would be 

foregone, or to quantify the social costs 

that would be imposed, we expect that 

they would be negligible. 

For PSD, the primary social cost 

imposed by the tailoring rule stems from 

the foregone benefit of applying BACT 

to the tens of thousands of small new 

sources and modifications that will be 

below our proposed thresholds during 

the first phase. This social cost 

potentially weighs against the cost 

savings described above that stem (in 

part) from avoiding the administrative 

and control costs of applying BACT to 

these sources. The BACT requirement 

assures that new and modified sources, 

when they increase their emissions are 

using state-of-the-art emission controls 

and affords the public an opportunity to 

comment on the control decision. It 

does not prohibit increases but it 

assures that such controls are applied. 

Delaying the BACT requirement for 

numerous small sources during the first 

phase of this proposed rule could allow 

increases from these smaller sources 

that are greater than they would be if 

BACT were applied. A detailed analysis 

of this difference is beyond the scope of 

this rule because we do not have 

detailed information on the universe of 

these tens of thousands of small PSD 

actions, the candidate BACT 

technologies for each of them, how 

permitting authorities would make the 

BACT decisions, and how the BACT 

limit would compare to what would 

otherwise be installed absent BACT. 

It is not possible at this time to 

quantify the social costs of avoided 

BACT. However we note that the 

universe of possible emissions that 

would be regulated by sources excluded 

under the tailoring rule is small 

compared to those that would remain 

subject to PSD. The sources excluded in 

the first phase of this proposal comprise 

only 7 percent of total stationary source 

GHG emissions, while 68 percent 

remain subject to regulation. 

Furthermore, we expect the emissions 

differences due to BACT controls for 

such sources to be relatively small due 

to the lack of available capture and 

control technologies for GHG at such 

sources that are akin to those that exist 

for conventional pollutants and sources, 

as well as the likelihood that even in the 

absence of BACT such sources would 

already be installing relatively efficient 

GHG technologies to save on fuel costs. 

Thus, while potential benefits would be 

foregone by excluding smaller sources 

from the permitting programs, these 

benefits are likely to be small. Under the 

tailoring rule, we will be working 

during the 6-year period to greatly 

improve our understanding of both the 

administrative costs of regulating and 

the social costs of not regulating smaller 

sources under PSD and title V, and we 

will be relying on that information to 

support our future threshold analyses 

called for under the proposal. 

In reaching the decisions for this GHG 

tailoring rule, the EPA recognizes that 

GHG emissions can remain in the 

atmosphere for decades to centuries, 

meaning that their concentrations 

become well-mixed throughout the 

global atmosphere regardless of 

emission origin, and their effects on 

climate are long lasting and significant. 

A detailed explanation of climate 

change and its impact on health, 

society, and the environment is 

included in EPA’s technical support 

document for the endangerment finding 

proposal (Docket ID No. EPA–HQ– 

OAR–2009–0171). The EPA recognizes 

the importance of reducing climate 

change emissions for all sources of GHG 

emissions including those sources 

afforded regulatory relief in this rule 

and plans to address potential emission 

reductions from these small sources 

using voluntary and energy efficiency 

approaches. Elsewhere, we have 

discussed EPA’s interest in continuing 

to use regulatory and/or non-regulatory 

tools for reducing emissions from 

smaller GHG sources because we believe 

that these tools will likely result in more 

efficient and cost-effective regulation 

than would case-by-case permitting. 

X. What implementation issues are 

related to this proposal? 

In this action, EPA is proposing 

certain steps to ensure that smaller 

sources (meaning sources emitting 

GHGs at lower rates) will not become 

subject to PSD or title V upon EPA’s 

completion of a rulemaking that 

regulates GHG emissions. Absent those 

steps, such a rule would trigger PSD and 

title V for many of these smaller 

sources. This is because both the CAA 

PSD provisions and the title V 

provisions are self-effectuating, that is, 

they each apply by their terms to require 

sources to undergo permitting 

requirements. In addition, federally 

approved State law provisions 

implement both the CAA PSD 

provisions and title V provisions. Those 

State law provisions consist of the 

various SIPs and State operating permit 

programs, respectively. In order to limit 

PSD and title V applicability to sources 

that emit at or above the thresholds 

proposed in this action, and to ensure 

that these limits apply at the time a 

rulemaking regulating GHG emissions is 

promulgated—which will trigger PSD 

and title V applicability—EPA is 

proposing to establish threshold levels 

on the basis that the administrative 

necessity doctrine overlays the CAA 

PSD and title V requirements, so that it 


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34States are subject to sanctions for failure to 

submit, or for EPA disapproval of, SIPs for 

nonattainment areas, under CAA section 179. These 

sanctions provisions are not relevant for this 

proposal because they do not apply to PSD SIPs. 

is the proposed threshold levels, and 

not the statutory threshold levels, that 

apply to sources of GHG emissions. 

Moreover, EPA is proposing a process, 

consisting of several components, for 

conforming the EPA-approved SIPs and 

title V programs to reflect those 

threshold levels. This section of the 

preamble provides a detailed 

description of this process, first for the 

SIP PSD provisions, and then for the 

title V State operating permit program 

provisions. 

A. CAA Provisions Concerning SIP 

Requirements for PSD Programs, State 

Submittal Requirements, and EPA 

Action 

Before describing EPA’s proposed 

action for PSD SIP implementation, it is 

useful to review the relevant 

background concerning the CAA 

requirements for what SIPs must 

include, the process for State submittals 

of SIPs, and requirements for EPA 

action on SIPs and SIP revisions. 

1. SIP Requirements for State PSD 

Programs and Adequate Resources 

CAA section 110(a)(1) requires that 

States adopt and submit to EPA for 

approval SIPs that implement the 

national ambient air quality standards. 

CAA section 110(a)(2) contains a 

detailed list of requirements that all 

SIPs must include to be approvable by 

EPA. Of particular relevance for this 

action, subparagraph (J) of section 

110(a)(2) of the CAA imposes the 

requirement that the SIP must ‘‘meet the 

applicable requirements of * * * part C 

* * * (relating to prevention of 

significant deterioration of air quality 

* * *).’’ Under this provision, States 

must submit SIPs or SIP revisions that 

meet the federally mandated 

requirements for PSD programs. 

In addition, and also of particular 

relevance for this action, subparagraph 

(E)(i) of section 110(a)(2) of the CAA 

provides that SIPs must ‘‘provide * * * 

necessary assurances that the State 

* * * will have adequate personnel 

* * * [and] funding * * * to carry out 

such implementation plan * * *.’’ As 

applicable to PSD programs, this 

provision means that EPA may approve 

the SIP PSD provisions only if EPA is 

satisfied that the State will have 

adequate personnel and funding to 

administer the PSD program, including 

conducting the appropriate analyses for 

new and existing sources, issuing the 

permits, conducting enforcement, and 

taking other necessary administrative 

action. 

2. SIP Requirements for State 

Submittals, EPA Action, and FIPs 

As noted above, under CAA section 

110(a)(1)–(2), States must submit for 

EPA approval SIPs that meet the 

requirements of section 110(a). If a State 

does not submit a SIP or SIP revision as 

required, EPA is authorized to make a 

finding that the State has failed to make 

a required SIP submittal, under CAA 

section 179(a), and if EPA makes such 

a finding, then, under CAA section 

110(a)(2)(C), ‘‘[t]he Administrator shall 

promulgate a Federal implementation 

plan [(FIP)] at any time within 2 years 

after’’ the date of the finding, unless the 

State corrects the deficiency, and the 

Administrator approves the plan or plan 

revision. 

After a SIP or SIP revision has been 

submitted, EPA is authorized to act on 

it under CAA section 110(k)(3)–(4). 

Those provisions authorize a full 

approval or, if the SIP or SIP revision 

meets some but not all of the applicable 

requirements, a conditional approval, a 

partial approval and disapproval, or a 

full disapproval. If EPA disapproves a 

SIP or SIP revision, then EPA must 

promulgate a FIP at any time within 2 

years after the disapproval, unless the 

State corrects the deficiency within that 

period of time by submitting an 

approvable SIP revision.34

Once EPA has approved a SIP, if EPA 

determines that its action in doing so 

was in error, then, under CAA section 

110(k)(6), EPA may conduct a 

rulemaking to correct the error without 

requiring any further action, such as 

submission of a request or a SIP 

revision, from the State. Specifically, 

section 110(k)(6) provides: 

Whenever the Administrator determines 

that the Administrator’s action approving, 

disapproving, or promulgating any plan or 

plan revision (or part thereof), area 

designation, redesignation, classification, or 

reclassification was in error, the 

Administrator may in the same manner as the 

approval, disapproval, or promulgation 

revise such action as appropriate without 

requiring any further submission from the 

State. Such determination and the basis 

thereof shall be provided to the State and 

public. 

EPA also has authority to revise its 

previous action on a SIP through EPA’s 

inherent authority, under CAA section 

301(a), to reconsider prior rulemaking 

actions, as well as under Administrative 

Procedure Act (APA) section 553(e), 

which requires EPA to give interested 

persons ‘‘the right to petition for the 

issuance, amendment, or repeal of a 

rule.’’ 

In addition, CAA section 110(k)(5) 

gives EPA authority to issue what is 

commonly called a ‘‘SIP Call’’ when 

EPA determines that the SIP is 

inadequate to meet CAA requirements. 

The SIP Call notifies a State of the 

inadequacies in its current SIP and 

requires that the State submit a revised 

SIP for EPA approval. Specifically, 

section 110(k)(5) provides: 

Whenever the Administrator finds that the 

applicable implementation plan for any area 

is substantially inadequate to [meet certain 

section 110 requirements] or to otherwise 

comply with any requirement of this Act, the 

Administrator shall require the State to revise 

the plan as necessary to correct such 

inadequacies. The Administrator shall notify 

the State of the inadequacies, and may 

establish reasonable deadlines (not to exceed 

18 months after the date of such notice) for 

the submission of such plan revisions. 

B. What PSD-specific implementation 

considerations are there? 

Three different requirements of the 

CAA PSD provisions and the PSD SIPs 

are at issue for this action. The SIPs vary 

in certain ways with respect to these 

requirements, so that EPA must take 

different actions for different SIPs. 

These three requirements concern the 

threshold level for applicability, the 

significance level, and the pollutants 

subject to PSD. The first two—threshold 

and significance levels—may be treated 

similarly and are discussed immediately 

below. The third is discussed after that. 

1. Requirements for Thresholds and 

Significance Levels in PSD Provisions 

and PSD SIPs 

a. EPA’s proposed action: Revision of 

Federal regulations and limitation of 

approval of SIPs. 

As discussed elsewhere in this action, 

the CAA PSD provisions apply to new 

sources at or above 100/250-tpy 

thresholds. CAA sections 165(a), 169(1). 

These requirements are included in EPA 

regulations in 40 CFR 52.21, which 

indicate what States should include in 

their SIPs. The CAA PSD provisions 

apply to existing sources that modify 

when those modifications increase 

emissions by any amount, CAA section 

165(a), 169(2)(C), 111(a)(4), unless EPA 

promulgates higher levels—which we 

term ‘‘significance levels’’—based on 

reasons of de minimis emissions or 

administrative necessity. Alabama 

Power v. Costle, 636 F.2d 323 (D.C. Cir. 

1980). This requirement is included in 

EPA regulations in 40 CFR 52.21. Until 

EPA acts to establish a significance level 

for GHG emissions, the level in effect 

remains at zero for any newly regulated 

pollutants. 


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Most jurisdictions are covered by 

EPA-approved PSD SIPs. Based on a 

review of these EPA-approved PSD SIPs, 

virtually all of them establish the PSD 

permitting threshold at the 100/250-tpy 

level, although a few States have 

adopted lower permitting threshold 

levels. In addition, virtually all EPAapproved SIPs establish the significance 

level for any new pollutants that it 

covers—including GHG emissions, if 

covered—at zero. Only a few EPA 

approved SIPs take a slightly different 

approach by adopting significance 

levels at values other than zero and up 

to the permitting thresholds. Some 

jurisdictions are not covered by EPAapproved SIPs, and instead are covered 

by EPA regulations at 40 CFR 52.21 that 

EPA implements (in which case, the 

EPA regulations act as a FIP) or that the 

State implements through authority 

delegated to it by EPA. For these States, 

the PSD threshold level is 100/250 tpy 

and the significance level for new 

pollutants, including GHG emissions, is, 

in effect, zero. 

As discussed elsewhere, this action 

proposes to establish the PSD thresholds 

for GHG emissions at 25,000 tpy CO2e, 

and proposes to establish the PSD 

significance levels at [10,000–25,000] 

tpy CO2e. EPA plans the following 

process to revise its regulations and to 

conform the EPA-approved SIPs to 

reflect these levels. 

First, with respect to EPA regulations, 

EPA proposes to revise its regulations to 

establish the permitting threshold at 

25,000 tpy CO2e, at 40 CFR 52.21, and 

to establish the significance level at 

[10,000 to 25,000] tpy CO2e, at 40 CFR 

52.21, based on the administrative 

necessity doctrine discussed in section 

VI.C of this preamble. 

Second, with respect to the EPAapproved SIPs, although EPA previously 

fully approved the permitting threshold 

level provisions and the significance 

level provisions in those SIPs, EPA 

proposes to limit its approval of those 

provisions in part. Specifically, EPA 

proposes to limit its approval of (i) the 

permitting threshold level provisions to 

the extent those provisions require 

permits for sources whose GHG 

emissions equal or exceed the 100/250- 

tpy CO2e levels but are less than 25,000 

tpy CO2e for PSD thresholds; and (ii) of 

the significance level provisions to the 

extent those provisions apply to GHG 

emissions less than [10,000 to 25,000] 

tpy CO2e. As discussed below, EPA’s 

authority for these limitations of 

approval is based on its authority under 

CAA section 301(a), which incorporates 

the inherent authority of an agency to 

reconsider its actions, as well as under 

APA section 553. Even so, EPA is also 

proposing, in the alternative, to limit its 

approval through the error correction 

provisions of CAA section 110(k)(6). 

EPA does not propose to take any 

further action on the permitting 

threshold or significance level 

provisions for which EPA is limiting its 

approval; that is, EPA is not proposing 

to disapprove those provisions. Thus, 

the limitation of approval for those 

provisions does not trigger an obligation 

on the part of the State to revise and 

resubmit for approval the affected PSD 

SIP provisions and does not trigger a FIP 

obligation. 

The permitting threshold PSD SIP 

provisions that apply to sources with 

GHG emissions at 25,000 tpy CO2e or 

higher, and the significance level 

provisions that apply to sources with 

GHG emissions at [10,000 to 25,000] tpy 

CO2e or higher, remain fully approved. 

As a drafting matter, EPA proposes to 

accomplish the limitations of approval 

by adding to the record of its action on 

each SIP, as found in the subparts to 40 

CFR 51.21, the boilerplate statements 

that (i) EPA limits its approval of the 

PSD permitting threshold provisions to 

the extent those provisions require 

permits for sources of GHG emissions 

that equal or exceed 100 tpy CO2e for 

sources in the 28 categories identified in 

CAA section 169(1), and 250 tpy CO2e 

for all other sources, but that are less 

than 25,000 tpy CO2e; and (ii) EPA 

limits its approval of the PSD 

significance level provisions to the 

extent those provisions treat as 

significant GHG emissions increases 

that are less than [10,000 to 25,000] tpy 

CO2e. 

b. Authority for limitation of 

approval. 

EPA is limiting its approval through 

its authority under CAA section 301(a) 

‘‘to prescribe such regulations as are 

necessary to carry out [EPA’s] 

functions’’ under the CAA. This 

provision confers general regulatory 

authority upon the Administrator, and 

incorporates the Agency’s inherent 

authority to reconsider prior rulemaking 

actions. Additional authority for EPA to 

limit its approval is found in APA 

section 553(e), which requires EPA to 

give interested persons ‘‘the right to 

petition for the issuance, amendment, or 

repeal of a rule.’’ 

An administrative agency has the 

inherent authority to reconsider its 

decisions, unless Congress specifically 

proscribes the agency’s discretion to do 

so. The D.C. Circuit recently affirmed 

this authority in New Jersey v. EPA, 517 

F.3d 574 (D.C. Cir. 2008), where it 

explained that an agency normally can 

change its position and reverse a prior 

decision but that in the case before it, 

Congress limited EPA’s ability to 

remove sources from the list of HAP 

source categories, once listed, by 

requiring EPA to follow the specific 

delisting process at CAA section 

112(c)(9). See, e.g., Gun South, Inc. v. 

Brady, 877 F.2d 858, 862 (11th Cir. 

1989) (holding that agencies have 

implied authority to reconsider and 

rectify errors even though the applicable 

statute and regulations do not provide 

expressly for such reconsideration); 

Trujillo v. General Electric Co., 621 F.2d 

1084, 1086 (10th Cir. 1980) 

(‘‘Administrative agencies have an 

inherent authority to reconsider their 

own decisions, since the power to 

decide in the first instance carries with 

it the power to reconsider’’). CAA 

section 307(b)(1), a judicial review 

provision that applies to all SIP actions, 

provides some confirmation because it 

expressly contemplates the ‘‘filing of a 

petition of reconsideration by the 

Administrator of any otherwise final 

rule or action.’’ 

EPA recently applied this approach in 

connection with California conformity 

SIPs. EPA had approved the SIPs based 

on a mobile source model that was 

current at the time of EPA’s approval. 

EPA proceeded to update the mobile 

source model, but under the previous 

SIP approvals, conformity decisions 

would continue to be made on the basis 

of those previous SIP approvals, and 

would not take into account the updates 

to the mobile source model. To rectify 

this problem, EPA conducted a 

rulemaking that revised the previous 

SIP approvals so that they were limited 

to the period before States submitted, 

and EPA found adequate, the mobile 

source budgets in new SIPs based upon 

the update of the mobile source model. 

Similarly, in this action, EPA is 

proposing to limit its previous approval 

to, in effect, a portion of the State PSD 

program, which is the permitting 

requirements that apply to sources of 

GHG emissions at or above 25,000 tpy 

CO2e (for permitting thresholds) and 

[10,000 to 25,000] tpy CO2e (for 

significance levels), respectively. The 

reason is that in light of the requirement 

under CAA section 110(a)(2)(E) that 

SIPs provide necessary assurances of 

adequate personnel and funding, the 

previous approvals of the PSD programs 

were overly broad. Specifically, EPA 

approved PSD programs that applied to 

all sources of regulated NSR pollutants 

above the 100/250-tpy statutory levels. 

At the time of the EPA approvals, the 

sources emitting the pollutants covered 

by the PSD programs, so approved, may 

have been in sufficiently limited 

numbers so that State resources were 

adequate to fully administer the PSD 


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35After challenges by industry and 

environmental organizations, parts of this 

rulemaking were remanded by the D.C. Circuit in 

Continued 

program. However, the breadth of the 

applicability requirements that EPA 

approved meant that if new pollutants 

were regulated in the future, and if 

those new pollutants were emitted at 

the levels of 100/250 tpy or higher by 

large numbers of sources, then the 

States’ PSD programs would become 

much larger and State resources 

accordingly will not be adequate to 

administer the program. The SIP failed 

to provide necessary assurances that the 

State would have sufficient personnel 

and funding to cover this possible 

expansion of the PSD program. In fact, 

those events are unfolding now: EPA is 

in the process of regulating GHG 

emissions and thereby triggering PSD 

applicability for GHG sources, and, at 

the applicability levels in the SIPs, State 

PSD programs will become too large for 

States to administer with their current 

levels of personnel and funding. For 

these reasons, EPA is limiting its 

previous approvals, as described above. 

c. Proposed alternative action: Error 

correction. 

EPA is also proposing in the 

alternative to revise its approval of the 

SIP threshold and significance level 

provisions through a CAA section 

110(k)(6) error correction. As noted 

above, CAA section 110(k)(6) authorizes 

EPA to correct its actions concerning 

SIPs and certain other actions through a 

simplified procedure. For the reasons 

described immediately above, EPA 

believes that the SIPs did not provide 

the necessary assurances, as required 

under CAA section 110(a)(2)(E), that the 

permitting authorities would have 

personnel and funding adequate to 

implement the extensive SIP PSD 

programs that could result from the 

broadly applicable PSD threshold 

provisions and significance level 

provisions as approved. Therefore, 

under this alternative proposal, EPA 

erred in approving those provisions. 

Rather, EPA should have approved 

those provisions only in part, and not 

taken action on the rest of the 

provisions. 

As a result, EPA proposes to correct 

those errors, under the authority of CAA 

section 110(k)(6), by limiting its 

approval of the PSD threshold 

provisions to the extent they apply PSD 

requirements to sources of GHG 

emissions between 100/250 tpy CO2e 

and 25,000 tpy CO2e, and the PSD 

significance level provisions to the 

extent they apply to sources that emit 

GHGs at a rate below [10,000 to 25,000] 

tpy CO2e. In accordance with CAA 

section 110(k)(6), EPA is proposing to 

conduct its limitation of approval 

through notice-and-comment 

rulemaking under APA section 553, 

which is ‘‘the same manner as [EPA 

conducted] the approval,’’ and EPA is 

not requiring any further submission 

from the State. 

d. State response. 

For purposes of the federally 

approved SIP, this proposed action does 

not require States to submit any SIP 

revision. That is, if EPA finalizes this 

proposal, each federally approved PSD 

program will have a PSD threshold level 

for GHG emissions of 25,000 tpy CO2e 

and a significance levels for GHG 

emissions of [10,000 to 25,000] tpy 

CO2e; and although each State PSD 

program—as established by the State 

law provisions that comprise the SIP— 

will have a lower threshold and 

significance level, those lower levels 

will not be federally approved and 

therefore not federally enforceable. To 

reiterate, EPA is not proposing to 

disapprove those provisions; rather, 

EPA will take no further action with 

respect to them. As a result, no further 

action by the State, including no SIP 

revision, is necessary for Federal 

purposes. 

Even so, it should be noted that the 

lower thresholds remain on the books 

under State law, and sources therefore 

remain subject to them as a matter of 

State law. As a result, States may wish 

to consider revising those State law 

provisions. In addition, the fact that 

these provisions remain on the books 

under State law may create some 

confusion as to whether they are part of 

the federally approved SIP (again, with 

this proposed action, they would not 

be), and for this purpose too of avoiding 

this confusion, States may wish to 

consider revising those State law 

provisions. 

On the other hand, if a State wants to 

implement PSD permitting requirements 

at a threshold level lower than 25,000 

tpy CO2e, or implement a significance 

level lower than [10,000 to 25,000] tpy 

CO2e, for GHG emitters, the State may 

submit a SIP revision that identifies the 

lower thresholds and provides the 

necessary assurances, under CAA 

section 110(a)(2)(E), that it has adequate 

personnel and funding to permit at this 

level. If the SIP revision meets the CAA 

section 110(a)(2)(E) requirement, EPA 

will proceed to approve it. Permitting 

for this State would then cover such 

smaller sources. For reasons described 

elsewhere in this notice, the EPA has 

determined based on its national 

analysis that, absent additional 

streamlining measures, the PSD program 

will initially be impossible to 

implement at such lower levels. A State 

seeking to adopt lower levels should 

therefore be prepared to describe in its 

submittal the administrative burden that 

will be added at the proposed lower 

levels, and the measures it will take to 

make the program implementable at 

those levels. 

It should be noted that EPA 

considered, but is not proposing or 

soliciting comment on, issuing a SIP call 

under CAA section 110(k)(5) to require 

States to either demonstrate that they 

have adequate personnel and funding to 

administer their PSD programs at the 

100/250-tpy CO2e threshold level for 

GHG emitters, or to submit a SIP 

revision that raises the threshold to 

25,000 tpy CO2e or some other level 

commensurate with their personnel and 

funding. EPA decided against this 

approach for several reasons. First, a SIP 

call under section 110(k)(5) takes 

significantly more time than actions 

taken under EPA’s other authorities. For 

a SIP call, EPA first undertakes a noticeand-comment process in order to make 

the finding that a SIP is inadequate and 

to set a schedule for a new SIP 

submission by a State (which can be up 

to 18 months after EPA’s 

determination). Then, EPA must 

provide notice and opportunity for 

comment regarding whether or not the 

Agency should approve the SIP revision 

submitted by a State in response to the 

SIP call. By contrast, the reconsideration 

of a SIP approval can be undertaken in 

much less time. Reconsideration of a 

SIP approval may lead to a more speedy 

and efficient resolution in a situation 

(such as the present) where there is no 

need for a further SIP submission to be 

developed and submitted to EPA by the 

State. 

2. PSD SIP Provisions Identifying the 

Pollutants 

A handful of EPA-approved SIPs fail 

to include provisions that would subject 

GHG emissions to their PSD 

requirements when EPA promulgates 

regulations that regulate GHGs and 

thereby trigger the applicability of PSD. 

For these SIPs, EPA intends to take 

separate regulatory action, as discussed 

in this section of this preamble. 

a. Regulatory background. 

By way of background, in 1978, after 

Congress enacted the PSD program in 

the 1977 CAA Amendments, EPA 

promulgated a rulemaking to implement 

the program. 43 FR 26380 (June 19, 

1978). This rulemaking required that the 

PSD program apply to ‘‘each pollutant 

subject to regulation’’ under the CAA. 

Id. at 26403, 26406 (promulgating 40 

CFR 51.21(b)(1)(i)).35 In 2002, EPA 


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Alabama Power v. Costle, 636 F.2d 323 (D.C. Cir. 

1980), and EPA promulgated revised requirements 

in 1980. 45 FR 52676 (August 7, 1980). The 

requirement that the PSD program apply to ‘‘each 

pollutant subject to regulation’’ under the Act was 

not at issue in Alabama Power and was not revised 

in the rule revisions that followed that decision. 

36 It should be noted that if any State with these 

SIP provisions interprets their provisions to cover 

only pollutants regulated (or subject to regulation) 

at the time of SIP submission or approval, so that 

the provisions would not cover GHG emissions, 

then the State should so indicate during the 

comment period. EPA will take steps to resolve the 

proper interpretation of the provision. EPA 

proposes in this action that if EPA agrees that the 

SIP provision cannot be interpreted to cover sources 

of GHG emissions, then EPA will treat the State in 

the same manner as States that specifically list 

pollutants as subject to PSD requirements and do 

not include GHGs, as discussed below. 

37 It should be noted that in this action, EPA is 

not addressing in any way any other issue that may 

arise concerning any of these States that do not 

have approved PSD programs incorporating all of 

the requirements of the NSR Reform rule. 

38 In addition, if EPA disapproves a title V 

program due to failures by the State concerning an 

area in the State and air pollutants for which that 

area is in nonattainment, then mandatory sanctions 

apply, under CAA section 502(d)(2)(B)–(C). 

Sanctions regarding offsets would not be relevant 

for purposes of this action because GHGs are not 

criteria air pollutants under CAA section 108(a) and 

no areas are designated nonattainment for them. 

promulgated a rulemaking that revised 

parts of the PSD and nonattainment 

NSR programs, which is generally 

known as the ‘‘NSR Reform’’ 

rulemaking, and there, EPA revised this 

terminology so that PSD requirements 

apply to ‘‘regulated NSR pollutants.’’ 67 

FR 80186 (Dec. 31, 2002); see 40 CFR 

52.21(b)(50). 

After the 1978 rulemaking, most 

States submitted SIPs with provisions 

that incorporated the requirement to 

apply PSD requirements to ‘‘each 

pollutant subject to regulation,’’ or used 

comparable terminology, and EPA 

approved those provisions. Following 

the 2002 NSR Reform rule, many, 

although not all, of these States 

submitted SIPs that EPA has approved 

and that have replaced that terminology 

with the requirement that PSD 

requirements apply to ‘‘NSR regulated 

pollutants.’’ 

However, a few SIPs do not have 

provisions that apply the PSD 

requirements to ‘‘regulated NSR 

pollutants’’ or ‘‘pollutants subject to 

regulation’’ under the CAA, or use 

comparable terminology. Rather, these 

SIPs specifically list the pollutants to 

which the PSD programs apply, and do 

not include GHGs. 

b. EPA’s plan of separate regulatory 

action. 

It is EPA’s understanding that each of 

the SIPs that cover either ‘‘NSR 

regulated pollutants’’ or ‘‘pollutants 

subject to regulation’’ under the CAA, or 

that use comparable terminology, will 

apply the PSD requirements to sources 

that emit GHGs, at the appropriate 

threshold levels, when EPA promulgates 

rules regulating GHGs and thereby 

triggering PSD requirements. This is 

because these SIP provisions employ 

broad enough terminology to encompass 

newly regulated pollutants, such as 

GHGs.36 As a result, for these SIPs, no 

further action by EPA in this proposal 

is necessary.37

However, the story is different for the 

few SIPs that do not have provisions 

that apply the PSD requirements to 

‘‘regulated NSR pollutants’’ or 

‘‘pollutants subject to regulation’’ under 

the CAA, and that instead specifically 

list the pollutants to which the PSD 

programs apply, and do not include 

GHGs. Although EPA approved them, 

these SIPs were, and remain, deficient 

because by subjecting to the PSD 

requirements only the pollutants 

specifically listed, they fail to reflect the 

EPA’s longstanding requirements that 

PSD requirements apply to all 

pollutants subject to regulation under 

the CAA, which necessarily includes 

any newly regulated pollutants beyond 

those specifically listed. 

Importantly, for present purposes, 

these SIPs do not require that GHG 

emitters obtain PSD permits. However, 

CAA section 165(a), by its terms, 

prohibits a source that is subject to PSD 

from constructing or modifying without 

a permit. As noted elsewhere, as a result 

of the proposed light-duty vehicle rule, 

expected to be promulgated at the end 

of March 2010, sources of GHG 

emissions in those States will be subject 

to the requirement of CAA section 

165(a) to obtain a preconstruction PSD 

permit. 

EPA recognizes the problems that 

arise from this situation. Accordingly, 

EPA intends a separate regulatory action 

in the very near future that will identify 

the SIPs in question and address them. 

EPA expects this regulatory action to be 

completed and to take effect by the time 

EPA promulgates the light-duty vehicle 

rule at the end of March 2010. 

C. What title V-specific implementation 

issues are there? 

Some of the title V-specific 

implementation issues parallel the PSD 

SIP implementation issues. Thus, the 

process EPA is proposing, described 

below, to conform the EPA-approved 

title V programs to reflect the title V 

applicability threshold level for GHG 

emissions of 25,000 tpy CO2e parallels 

in certain respects the process described 

above for conforming the EPA-approved 

SIP PSD programs. 

1. CAA Provisions Concerning Title V 

Requirements for State Programs, State 

Submittal Requirements, and EPA 

Action 

Before describing EPA’s proposed 

action for title V implementation, it is 

useful to review the relevant 

background concerning the CAA 

requirements for title V State operating 

permit programs, State submittals of 

those programs, and EPA action on State 

title V programs. 

a. CAA requirements under title V for 

State permitting programs. 

CAA section 502(d)(1) requires that 

each State adopt and submit to EPA for 

approval an operating permit program 

under State or local law that meets the 

requirements of title V. CAA section 

502(b) contains a detailed list of 

requirements that all State permit 

programs must include to be approvable 

by EPA. Of particular relevance for this 

action, paragraph (4) of section 502(b) 

provides that the permit program must 

include ‘‘[r]equirements for adequate 

personnel and funding to administer the 

program.’’ This provision means that 

EPA may approve the State permit 

program only if EPA is satisfied that the 

State will have adequate personnel and 

funding to administer the program, 

including issuing the permits, 

conducting enforcement, and taking 

other necessary administrative action. 

b. State permit program submittal 

requirements and Federal plans. 

As noted above, under CAA section 

502(d), States must submit for EPA 

approval State permit programs that 

meet the requirements of CAA section 

502(b). If a State does not submit a 

permit program as required, or if EPA 

disapproves a program submitted, in 

whole or in part, then the Administrator 

‘‘shall, 2 years after the date required for 

submission of such a program * * *, 

promulgate, administer, and enforce a 

[title V] program * * * for that State,’’ 

under CAA section 502(d)(3).38

c. EPA action on, and revision of 

action for, State permit programs. 

After a State permit program has been 

submitted, EPA must approve or 

disapprove it in whole or in part. CAA 

section 502(d)(1). Those provisions 

authorize EPA to approve the program 

to the extent that it meets the 

requirements of title V. 


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39Title V does not include a provision for an error 

correction that is comparable to CAA section 

110(k)(6), which concerns SIPs. 

40Title V requirements also apply to sources 

defined as major sources under CAA section 112 on 

the basis of their emissions of HAP, and these 

sources may be covered by title V even though they 

emit less than the 100-tpy threshold that generally 

applies. 

Once EPA has approved a permit 

program, EPA retains the authority to 

revise its action through its inherent 

authority to reconsider prior rulemaking 

actions, as well as under APA section 

553(e), which requires EPA to give 

interested persons ‘‘the right to petition 

for the issuance, amendment, or repeal 

of a rule.’’ 39

In addition, CAA section 502(i)(1) 

gives EPA authority to issue what is 

commonly called a ‘‘notice of 

deficiency’’ (NOD) when EPA 

determines that the permitting authority 

‘‘is not adequately administering and 

enforcing a program, or portion 

thereof.’’ The NOD notifies a State of the 

inadequacies in its current permit 

program and requires that EPA 

promulgate, administer, and enforce a 

permit program under title V within 2 

years after issuing the notice unless the 

State has corrected the deficiency, 

under section 502(i)(4). See also CAA 

sections 502(i)(2)–(3) regarding 

sanctions. 

2. What title V-specific implementation 

considerations are there? 

Two different requirements of the 

CAA title V permit programs are at issue 

for this action. The permit programs are 

similar with respect to these 

requirements, so that EPA’s action is the 

same for each of the permit programs. 

These two requirements concern the 

threshold level for applicability and the 

pollutants subject to title V permitting 

requirements. 

a. Requirements for threshold level in 

title V Federal regulatory provisions and 

title V State plans. 

(i) EPA’s proposed action: Revision of 

Federal regulations and limitation of 

approval of SIPs. 

As discussed elsewhere in this action, 

the CAA title V requirements, as 

interpreted by EPA, generally apply to 

existing sources that emit 100 tpy or 

more of any air pollutant.40 CAA 

sections 502(a), 501(2)(B). These 

requirements are included in EPA 

regulations in 40 CFR 70.3. 

Most jurisdictions are covered by 

EPA-approved State title V permit 

programs. It appears that each EPAapproved title V permit program 

establishes the permitting threshold at, 

in general, 100 tpy. Some jurisdictions 

are not covered by EPA-approved State 

programs, and instead are covered by 

regulations at 40 CFR 71 that EPA 

implements. For these jurisdictions, the 

PSD threshold level is 100 tpy. 

As discussed elsewhere, in this 

action, EPA proposes to establish the 

title V permitting threshold for GHG 

emissions at 25,000 tpy CO2e. EPA 

plans the following process to revise its 

regulations and to conform the EPAapproved State title V programs to 

reflect these levels. This action parallels 

EPA’s action to revise its PSD 

regulations and conform the EPAapproved State PSD programs to the 

revised PSD regulations, discussed 

above. First, with respect to its EPA 

regulations, EPA proposes to revise its 

regulations to establish the permitting 

threshold for GHGs at 25,000 tpy CO2e, 

at 40 CFR 70.2. Second, with respect to 

the EPA-approved State permitting 

programs, although EPA previously 

fully approved the permitting threshold 

level provisions in those programs, EPA 

proposes to limit its approval of the 

permitting threshold level provisions to 

the extent those provisions require 

permits for sources whose emissions of 

GHGs equal or exceed 100 tpy CO2e but 

are less than 25,000 tpy CO2e. EPA’s 

authority for this limitation of approval 

is based on CAA section 301(a), which 

incorporates the inherent authority of an 

agency to reconsider its actions, as well 

as on APA section 553. 

EPA does not propose to take any 

further action on the permitting 

threshold provisions for which EPA is 

limiting its approval; that is, EPA is not 

proposing to disapprove those 

provisions. Thus, the limitation of 

approval for those provisions does not 

trigger an obligation on the part of the 

State to revise and resubmit for approval 

the affected permitting program 

provisions and does not trigger any 

Federal plan obligation. 

The State permitting threshold 

provisions that apply to sources with 

GHG emissions at 25,000 tpy CO2e or 

higher remain fully approved. 

As a drafting matter, EPA proposes to 

accomplish the limitations of approval 

by adding to the record of its action on 

each State permit program the 

boilerplate statement that EPA limits its 

approval of the State permitting 

threshold provisions to the extent those 

provisions require permits for sources of 

GHG emissions that equal or exceed 100 

tpy CO2e but that are less than 25,000 

tpy CO2e. 

(ii) Authority for limitation of 

approval. 

As with its action concerning the PSD 

program, discussed above, EPA is 

limiting its approval under CAA section 

301(a), which reflects its inherent 

authority to reconsider prior rulemaking 

actions, as well as under APA section 

553(e). This authority is described in 

detail above in connection with EPA’s 

proposed parallel action concerning 

PSD SIP provisions. 

(iii) State response. 

For purposes of the federally 

approved State permit program, this 

proposed action does not require States 

to submit any revision or take any 

further action. That is, if EPA finalizes 

this proposal, each federally approved 

title V program will have an 

applicability threshold level of 25,000 

tpy CO2e. Although the State permitting 

program—as established by the State 

law provisions—may have a lower 

threshold, that lower level will not be 

federally approved and will therefore 

not be federally enforceable. To 

reiterate, EPA is not proposing to 

disapprove those provisions; rather, 

EPA will take no further action with 

respect to them. As a result, no further 

action by the State, including no 

program revision, is necessary for 

Federal purposes. 

Even so, the lower thresholds remain 

on the books under State law, and 

sources therefore remain subject to them 

as a matter of State law. As a result, 

States may wish to consider revising 

those state law provisions. In addition, 

the fact that these provisions remain on 

the books under State law may create 

some confusion as to whether they are 

part of the federally approved title V 

program (again, with this proposed 

action, they would not be), and for this 

purpose too of avoiding this confusion, 

States may wish to consider revising 

those state law provisions. 

On the other hand, if a state wants to 

implement its operating permit 

requirements at a threshold level lower 

than 25,000 tpy CO2e for GHG emitters, 

the state may submit an operating 

permit program revision that identifies 

the lower thresholds and provides the 

necessary assurances, under CAA 

section 502(b)(4), that it has adequate 

personnel and funding. If the program 

revision meets the CAA section 

502(b)(4) requirement, EPA will proceed 

to approve it. 

It should be noted that EPA 

considered, but is not proposing or 

soliciting comment on, issuing a NOD 

under CAA section 502(i)(1) to require 

States to either demonstrate that they 

have adequate personnel and funding to 

administer their operating permit 

programs at the 100-tpy CO2e threshold 

level for GHG emitters, or to submit a 

permit program revision that raises the 

threshold to 25,000 tpy CO2e or some 

other level commensurate with state 

personnel and funding. EPA decided 


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against this approach for several 

reasons. First, a NOD under section 

502(i)(1) takes significantly more time 

than actions taken under EPA’s other 

authorities. The first step in this process 

is publication of a NOD in the Federal 

Register that sets forth EPA’s findings as 

to the deficiencies in the state program. 

This notice requires the state to take 

significant action within 90 days, and 

identifies several actions, such as 

program withdrawal and 

implementation of a Federal permitting 

program, that EPA may take if 

significant action is not taken by the 

state. If the state has not corrected the 

deficiency within 18 months after the 

finding described above, EPA will 

promulgate, administer and enforce a 

Federal program within 2 years of the 

finding. In contrast, the reconsideration 

of a permit program approval can be 

undertaken in much less time. 

Reconsideration of a permit program 

approval may lead to a more speedy and 

efficient resolution in a situation (such 

as the present) where there is no need 

for a further permit program submission 

to be developed and submitted to EPA 

by the state. 

b. Requirement that title V permit 

programs apply to any air pollutant. 

It appears that most title V-approved 

state permit programs apply to 100-tpyor-more sources of any pollutant. As 

discussed elsewhere, EPA interprets 

these provisions to cover only 

pollutants that are actually regulated 

under other CAA provisions. These title 

V programs will include sources of GHG 

emissions when EPA promulgates 

regulations for GHG emissions, which 

EPA expects at the end of March 2010. 

For those title V programs, no further 

action concerning these provisions is 

needed. 

However, EPA believes that some title 

V programs may apply to 100-tpy-ormore sources of only pollutants 

specifically identified in the program 

provisions and that these title V 

programs do not include a provision 

that automatically updates title V 

applicability to include any new 

pollutant for which EPA promulgates 

controls. Thus, these title V programs 

would not include GHG emitters. These 

programs are similar, for title V 

purposes, to the SIPs described above 

that specifically list pollutants subject to 

PSD that do not include a provision that 

automatically updates PSD applicability 

to include any new pollutant for which 

EPA promulgates controls. Thus, these 

title V programs carry the same 

deficiency that the SIPs do. As with the 

SIPs, EPA intends to undertake separate 

regulatory action in the near future to 

address these title V programs, which 

EPA intends to be completed and take 

effect by the end of March 2010, when 

EPA promulgates the light-duty vehicle 

rule that triggers title V applicability for 

sources of GHG emissions. 

D. GHGs and Title V Permit Fees 

Under title V, section 502(b)(3) of the 

Act, permitting authorities (including 

State and local agencies, tribes, and 

EPA) are required to collect fees 

‘‘sufficient to cover all reasonable 

(direct and indirect) costs required to 

develop and administer the permit 

program requirements.’’ The final part 

70 rule grants States wide discretion in 

collecting fees from individual sources 

through establishment of fee schedules 

in their permit programs, provided the 

total fees collected from all sources are 

sufficient to cover the title V costs. See 

§ 70.9(a), and § 70.9(b)(1) and (b)(3). The 

initial permit program submittal to EPA 

is required to include a demonstration 

that the fee schedule will be sufficient 

to cover the program costs and an 

estimate of the program cost during the 

early years of implementation. See 

§ 70.4(b)(7) and (8). Also, at any time, 

EPA may require States to provide a 

detailed accounting of fee schedule 

adequacy, including when serious 

questions are raised about adequacy. 

See § 70.9(b)(5) and § 70.9(c). Thus, title 

V and part 70 place primary 

responsibility on the permitting 

authorities to raise adequate fees and on 

EPA to perform oversight of this 

responsibility. 

The activities related to regulation of 

GHGs that would increase permitting 

authority workloads can be grouped into 

the following two categories: (1) 

Changing existing permits to add any 

necessary provisions to address GHGs, 

and (2) issuing new permits to sources 

newly subject to permitting solely 

because their regulated GHGs exceed 

the major source threshold. 

Thus, we need to consider the impact 

of this proposal and any future 

regulation of GHGs on the fee 

requirements of the permit programs, 

and if any revisions are needed to parts 

70 and 71 in response to ensure 

collection of adequate fees to fund the 

permit programs. 

1. How are the fee rates set in the permit 

programs? 

The part 70 rule provided a shortcut 

to ease the level of detail otherwise 

required in States’ fee adequacy 

demonstrations by providing a 

‘‘presumptive minimum fee,’’ which 

was specified in section 502(b)(3)(B) of 

the Act. The final part 70 rule provides 

a rebuttable presumption that the fees 

charged by a state are sufficient to cover 

program costs if they collect an amount 

equal to or greater than the presumptive 

minimum fee multiplied by the actual 

tons of ‘‘regulated pollutants (for 

presumptive fee calculation),’’ as 

defined in § 70.2. The part 70 

presumptive fee was initially set at $25/ 

ton. This amount is adjusted for 

inflation, annually. See § 70.9(b)(2). The 

current presumptive minimum fee, 

effective through September 2009, is 

$43.75. EPA calculates the inflationadjusted part 70 presumptive minimum 

fee in October of each year and places 

a memorandum announcing the fee on 

a Web site it maintains for this purpose. 

See http://www.epa.gov/air/oaqps/ 

permits/fees.html. Also, EPA notes that 

it believes there are currently a minority 

of States that base their fees on the 

presumptive minimum, perhaps at most 

17 out of 112 State and local part 70 

permits programs. 

Since the use of the presumptive 

minimum fee is not mandatory for 

States, States were free to set either 

lower or higher fees rates, based on a 

more detailed fee adequacy 

demonstration. See § 70.9(b)(5). States 

were not required to set emissions-based 

fees though most did in combination 

with other approaches. Emissions-based 

fees on state fee schedules range from 

less than $10 per ton in a rural State to 

over $100 ton in a large urban area. 

Examples of other fee schedule 

approaches include processing fees, 

such as fees for applications, renewals 

and modifications, charges for time and 

material, and fees that vary depending 

on source category, equipment types, 

regulated air pollutant, business size, 

and many other factors. See § 71.9(b)(3). 

The part 71 permit program, 

administered by EPA and delegate 

agencies, charges a ‘‘part 71 annual fee,’’ 

for every actual ton of ‘‘regulated air 

pollutant (for fee calculation),’’ as 

defined in § 71.2. Also see fee schedule 

at § 71.9(c). The final rule for part 71 set 

this rate at $32/ton. Adjusted for 

inflation, the part 71 annual fee through 

calendar year 2009 is $45.25 per ton. 

The final rule based the $32/ton fee on 

a detailed fee demonstration performed 

by EPA, placed in the docket prior to 

promulgation of the final rule, showing 

slightly higher costs for EPA versus state 

implementation of a title V program. 

The annual inflation adjustment is 

performed in October of each year and 

is announced on the same Web site as 

the part 70 presumptive minimum. 

2. Which pollutants are subject to 

permit fees? 

The terms ‘‘regulated pollutant (for 

presumptive fee calculation)’’ under 

part 70 and ‘‘regulated pollutant (for fee 


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calculation)’’ under part 71 are defined 

essentially the same in both programs. 

These terms are both currently defined 

to mean any ‘‘regulated air pollutant’’ 

except: (1) Carbon monoxide, (2) any 

pollutant that is a regulated air pollutant 

solely because it is a Class I or II 

substance subject to a standard 

promulgated or established under title 

VI of the Act, or (3) any pollutant that 

is a regulated air pollutant solely 

because it is subject to a standard or 

regulation under section 112(r) of the 

Act. The part 70 fee pollutant definition 

specifies which regulated air pollutants 

must be considered in presumptive 

minimum analyses, while the part 71 

fee pollutant definition specifies which 

regulated air pollutants are the basis for 

fees for part 71 sources. The term 

‘‘regulated air pollutant’’ in parts 70 and 

71 means the following: 

(1) Nitrogen oxides or any volatile 

organic compounds; 

(2) Any pollutant for which a NAAQS 

has been promulgated; 

(3) Any pollutant that is subject to any 

standard promulgated under section 111 

of the Act; 

(4) Any Class I or II substance subject 

to a standard promulgated under or 

established by title VI of the Act; or 

(5) Any pollutant subject to a standard 

promulgated under section 112 or other 

requirements established under section 

112 of the Act, including sections 

112(g), (j), and (r) of the Act, including 

the following: (i) Any pollutant subject 

to requirements under section 112(j) of 

the Act. If the Administrator fails to 

promulgate a standard by the date 

established in section 112(e), any 

pollutant for which a subject source 

would be major shall be considered 

regulated 18 months after the section 

112(e) date; and (ii) Any pollutant for 

which the requirements of section 

112(g)(2) of the Act have been met, but 

only with respect to the individual 

source subject to the requirement. 

Note that GHGs are not currently 

included in either definition for fee 

purposes because they are not 

‘‘regulated air pollutants,’’ but GHGs 

may be covered in the future. 

Also note that section 502(b)(3) of the 

Act, upon which these fee regulations 

are based, does not specifically require 

fees for GHGs, and it does not 

specifically require fees for every 

regulated air pollutant, even those that 

may cause the source to be defined as 

a major source; it just requires adequate 

fees to cover costs. Thus, we believe the 

Act provides us with some discretion in 

how we treat GHGs for permit fee 

purposes. This discretion also would 

potentially include revising the part 70 

and 71 rules to address workload 

associated with GHGs. 

3. Proposal for Fees in State Part 70 

Programs 

The permitting of GHGs has the 

potential to create overwhelming 

resource burdens on State part 70 

programs. These burdens would be 

significantly reduced under this 

proposal, through raising the title V 

major source thresholds for GHGs, 

which will reduce the number of 

sources subject to permitting. 

Nonetheless, as noted above, there will 

be some remaining additional activity 

associated with GHG permitting that 

will likely require States to increase 

revenue to cover the expected increase 

in level of activity. At this time, we 

believe that the best approach to address 

this situation is for States to assess their 

increased workload and determine 

whether their current fee regulations 

need to be amended to cover any 

expected revenue shortfall. If so, States 

have a wide variety of possible options 

regarding what pollutants and sources 

to cover, and what fee structure to 

adopt. 

The EPA is not proposing at this time 

to amend its regulations to establish a 

presumptive fee approach that would 

involve specifically charging fees for 

GHGs. We are also not proposing at this 

time to calculate a new presumptive 

minimum fee under the existing 

presumptive fee approach to take GHGs 

into account, or to mandate revisions to 

fee regulations for GHGs in States that 

did not adopt the presumptive fee 

approach. We believe that the best 

approach at this time is to allow each 

State to determine how best to satisfy 

the fee adequacy requirement under the 

existing process, for EPA to monitor the 

situation, and be prepared to exercise 

oversight authority if necessary. 

Due to the large quantity of GHGs 

emitted relative to criteria pollutants, 

for example at a combustion source 

where GHGs may be from several 

hundred times to over one thousand 

times the emissions of other combustion 

pollutants, EPA has decided not to 

propose to amend its regulations to 

establish a presumptive fee approach 

that would treat GHGs similarly to 

current fee pollutants. Such an 

approach would result in greatly 

excessive revenues because agency 

workloads are not necessarily 

proportional to emissions for sources 

and GHG emissions are orders of 

magnitude larger than other emissions 

for many source categories. Thus we 

have rejected that approach as an 

option. Similarly, we considered and 

rejected proposing to require a different, 

significantly reduced presumptive 

minimum fee for GHG [e.g., by revising 

§ 70.9(b)(2)]. This is not required by the 

Act, provided States can raise revenues 

in the aggregate that are adequate to 

cover program costs. We also believe we 

would need better data to establish the 

appropriate basis for the GHG 

presumptive minimum. We expect our 

data will improve over time as EPA and 

permitting authorities gain experience 

with GHG permitting programs, but at 

present there are large uncertainties in 

our estimates of the additional GHG 

workload at the 25,000 ton CO2 level, 

the level of effort needed to incorporate 

future regulations for GHGs into 

permits, and the additional revenue that 

would come in from fees paid for 

emissions other than GHG from newly 

covered sources under existing fee 

schedules. Also, for similar reasons, we 

have decided not to issue NODs under 

§ 70.10(b) for State failure to adequate 

implement and enforce their part 70 

programs on the basis of failure to date 

to revise their fee schedules to cover any 

existing or anticipated workload for 

GHGs (for example, the workload 

associated with planning for future 

regulation, conducting emissions 

inventories of GHGs, and similar 

activities directly or indirectly related to 

part 70 permitting). 

Although we do not believe it is 

necessary to revise our part 70 

regulations to implement the fee 

requirements for GHGs, EPA intends to 

closely monitor State programs to 

ensure that incorporating GHGs into 

permits do not result in fee shortfalls 

serious enough to imperil the 

implementation and enforcement of the 

part 70 program. EPA has adequate 

authority under § 70.9(b)(5) to perform 

audits of State fees at any time, at our 

own initiative or whenever any serious 

questions are raised about fee adequacy, 

and we have done so in the past. During 

any such audit, EPA would focus its 

review on the program support test of 

§ 70.9(b)(1) in order to assure that fees 

are adequate to support the program. 

There is also authority in § 70.4(i)(3) for 

EPA or the State to initiate a program 

revision when relevant Federal or State 

regulations are modified or 

supplemented, such as when EPA takes 

a future action to regulate GHGs or 

when EPA has reason to believe that a 

State is not adequately administering its 

program, which could occur if a fee 

audit uncovers a need to increase a 

State’s fees. This provision specifically 

authorizes EPA to request additional 

documents or information, such as a 

revised fee demonstration. We also have 

authority to take action for a State’s 


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failure to adequately administer and 

enforce a part 70 permits program under 

§ 70.10(b). This process includes the 

issuance of a NOD and could result 

ultimately in withdrawal of the part 70 

program and imposition of a Federal 

part 71 program in its place, if 

appropriate and timely part 70 program 

revisions are not made (e.g., NODs on 

questions of fee adequacy: (1) 69 FR 

10167, March 4, 2004, http:// 

edocket.access.gpo.gov/2004/04- 

4822.htm; and (2) 71 FR 67061, 

November 20, 2006, http:// 

www.epa.gov/EPA-AIR/2006/November/ 

Day-20/a19555.htm). There are other 

examples where EPA has performed 

oversight of fee adequacy over State or 

local part 70 programs that did not 

ultimately result in the issuance of an 

NOD (i.e., see a December 13, 2001, 

letter from EPA Region 10 to a 

concerned citizen, http://www.epa.gov/ 

region7/programs/artd/air/title5/ 

t5memos/aktrust.pdf; and a September 

23, 2002, letter from EPA Region 3 to a 

concerned citizen, http://www.epa.gov/ 

air/oaqps/permits/response/ 

maryland.pdf. 

For these reasons we are proposing a 

recommendation that each State, local, 

or tribal part 70 program review its 

expected resource needs for 

implementing GHGs and its fee 

schedule with the aim of determining if 

its fee revenues will be adequate to 

cover the direct and indirect costs of 

implementing its program once GHGs 

are brought into the program. If they 

would not be adequate, States using the 

presumptive fee approach should be 

proactive in raising fees on current 

‘‘regulated pollutants (for presumptive 

fee calculation)’’ or developing other 

alternative approaches to meet the 

shortfall. We may officially require 

submittal of fee analyses for GHGs at 

any time in the future, but we do not 

believe we need to do so at this time. 

This approach is consistent with how 

we have treated past Federal regulations 

that could have potentially affected title 

V program resources and fees, including 

final rules that resulted in new 

applicable requirements in permits and 

that changed the number of sources 

required to get permits (e.g., we did not 

require new fee demonstrations in 

response to promulgation of a large 

number of part 63 emissions standards, 

nor in response to part 63 standards that 

required title V permits for minor 

sources). In those situations, we did not 

alter the Federal fee regulations or 

require changes to the fee regulations in 

State programs, but the requirement for 

adequate revenues still applied. 

4. GHGs and Part 71 Fees 

Similar to the explanation for part 70 

above, after GHGs become regulated for 

CAA purposes, we note that increased 

burdens will likely fall on part 71 

permitting authorities (EPA and 

delegate agencies), resulting in the need 

for EPA to review the part 71 fee 

schedule to ensure there are adequate 

fees to cover program costs. We are also 

not proposing at this time to establish a 

presumptive fee approach that would 

treat GHGs similarly to current fee 

pollutants nor to adjust the fee schedule 

of § 71.9(c) with respect to these 

expected burdens for similar reasons we 

explained above for part 70. EPA has 

not determined that existing part 71 fee 

structure will be inadequate to fund the 

part 71 program costs in the next few 

years with GHG permitting included. 

We will examine the increases in part 

71 burden due to GHG-related 

permitting activity and in fees collected 

from part 71 sources to assess whether 

part 71 fees remain adequate. Section 

71.9(c)(7) requires EPA to revise the fee 

schedule by rule if it does not reflect the 

costs of program administration, while 

§ 71.9(n)(2) requires the Administrator 

to review the fees schedule every 2 

years and to revise it if necessary. 

E. Implementation Assistance and 

Support 

In addition to the development of 

permit streamlining techniques during 

the threshold evaluation period to 

address administrative capacity issues, 

EPA also plans to compile and make 

available technical and background 

information on GHG emission factors, 

control technologies, strategies and 

measurement and monitoring 

methodologies for key GHG source 

categories. This information will be 

particularly helpful to permitting 

authorities in making BACT 

determinations for GHG for sources that 

trigger PSD during the phase-in period. 

We plan to make the information 

available at such time as necessary to 

support permitting agencies in their 

BACT determinations (e.g., on or before 

EPA completes an action that triggers 

PSD for GHGs). In addition, we will 

pursue using this information to 

develop presumptive BACT levels for 

selected source categories. 

We intend to focus our support effort 

on the largest emitting GHG source 

categories, those that would likely 

exceed the temporary major source GHG 

threshold adopted as part of this action. 

At this time, we believe that power 

plants, petroleum refineries, pulp and 

paper mills, iron and steel facilities and 

portland cement plants are some of the 

source categories for which such 

information would initially prove most 

useful to permitting agencies. A key 

objective of this support effort will be to 

help permitting authorities find cost 

effective ways to achieve GHG controls 

under the BACT requirement. In 

addition, the information may be useful 

to permit applicants in preparing BACT 

analyses as well as providing other 

stakeholders with an understanding of 

how GHG emissions may be mitigated. 

As an example, the information 

would include EPA’s industrial energy 

management resources for energy 

intensive industries available through 

its ENERGY STAR program (see http:// 

www.energystar.gov/index.cfm?c=in_

focus.bus_industries_focus). We intend 

to work closely with stakeholders in 

developing the support effort and 

information. This will help assure that, 

to the extent possible, the information 

developed supports consistency and 

certainty in BACT determinations. In 

planning this effort, EPA seeks comment 

on the following: (1) Given time and 

resource constraints, which specific 

source categories or sectors, including 

emission units, should EPA prioritize, 

(2) what specific information (e.g., 

emission factors, control technologies, 

collateral impacts, cost information, 

etc.) and what format would be most 

helpful to permitting agencies in 

carrying out the provisions of the PSD 

and title V programs as they would 

apply to GHGs, and (3) what other types 

of support or assistance can EPA 

provide to initially help air pollution 

control agencies with the permitting of 

GHGs? 

XI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action’’ because it raises novel legal or 

policy issues. Accordingly, EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under EO 12866 and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

In addition, EPA prepared an analysis 

of the potential costs and benefits 

associated with this action. This 

analysis is provided in the docket for 

this action and the analysis is briefly 

summarized in section IX of this 

preamble. 


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B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden. Instead, 

this proposed action would significantly 

reduce costs incurred by sources and 

permitting authorities relative to the 

costs that would be incurred if EPA did 

not revise the rule. Based on our GHG 

threshold data analysis, we estimated 

that over 40,000 new and modified 

facilities per year would be subject to 

PSD review based on applying a GHG 

emissions threshold of 250 tpy using a 

CO2e metric. This is compared to 280 

PSD permits currently issued per year, 

which is an increase of more than 140- 

fold. Similarly, for title V, we estimated 

that over six million new sources would 

be affected at the 100-tpy threshold for 

GHGs using the CO2e metric. By 

increasing the volume of permits by 

over 400 times, the administrative 

burden would be unmanageable without 

this rule. Despite this reduction of 

burden, the OMB has previously 

approved the information collection 

requirements contained in the existing 

regulations for PSD (see, e.g., 40 CFR 

52.21) and title V (see 40 CFR parts 70 

and 71) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. and has assigned OMB 

control number 2060–0003 and OMB 

control number 2060–0336 respectively. 

The OMB control numbers for EPA’s 

regulations in 40 CFR are listed in 40 

CFR part 9. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

APA or any other statute unless the 

agency certifies that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

Small entities include small businesses, 

small organizations, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of this proposed action on small 

entities, small entity is defined as: (1) A 

small business that is a small industrial 

entity as defined in the U.S. Small 

Business Administration (SBA) size 

standards (see 13 CFR 121.201); (2) a 

small governmental jurisdiction that is a 

government of a city, county, town, 

school district, or special district with a 

population of less than 50,000; or (3) a 

small organization that is any not-forprofit enterprise that is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed action on small 

entities, I certify that this proposed 

action will not have a significant 

economic impact on a substantial 

number of small entities. In determining 

whether a rule has a significant 

economic impact on a substantial 

number of small entities, the impact of 

concern is any significant adverse 

economic impact on small entities, 

since the primary purpose of the 

regulatory flexibility analysis is to 

identify and address regulatory 

alternatives ‘‘which minimize any 

significant economic impact of the rule 

on small entities.’’ 5 U.S.C. 603 and 604. 

Thus, an agency may certify that a rule 

will not have a significant economic 

impact on a substantial number of small 

entities if the rule relieves regulatory 

burden, or otherwise has a positive 

economic effect, on all of the small 

entities subject to the rule. 

We believe that this proposed action 

will relieve the regulatory burden 

associated with the major PSD and title 

V operating permits programs for new or 

modified major sources that emit GHGs, 

including small businesses. This is 

because the proposed action would raise 

major source applicability thresholds for 

these programs for sources that emit 

GHGs at rates below 25,000 tpy CO2e. 

As a result, the program changes 

provided in the proposed rule are not 

expected to result in any increases in 

expenditure by any small entity. 

We have therefore concluded that this 

proposed rule would relieve regulatory 

burden for a substantial number of small 

entities, and thus I certify that it will not 

have a significant economic impact on 

a substantial number of small entities. 

However, EPA recognizes that some 

small entities continue to be concerned 

about the potential impacts of the 

statutory imposition of PSD 

requirements that may occur given the 

various EPA rulemakings currently 

under consideration concerning GHG 

emissions. Accordingly, EPA will use 

the discretion afforded to it under the 

RFA to consult with OMB and SBA, 

with input from outreach to small 

entities, regarding the potential impacts 

of PSD regulatory requirements that 

might occur as EPA considers 

regulations of GHGs. EPA is not 

required to consult in this manner when 

it has certified that a rule will not have 

a significant economic impact on a 

substantial number of small entities, but 

we believe that engaging in such 

consultation before finalization of this 

rule will help us to better understand 

and address the potential PSD 

regulatory concerns of small entities 

that might experience such impacts. 

D. Unfunded Mandates Reform Act 

This proposed action does not contain 

a Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, and tribal governments, 

in the aggregate, or the private sector in 

any 1 year. Although this proposed 

action would result in a small increase 

in the burden imposed upon permitting 

authorities by requiring States to revise 

their SIPs to incorporate the changes, 

the revisions would ultimately reduce 

the PSD and title V program 

administrative burden that would 

otherwise occur in the absence of this 

rulemaking. Thus, this proposed action 

is not subject to the requirements of 

sections 202 or 205 of UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. EPA 

has determined that this proposed 

action contains no regulatory 

requirements that may significantly or 

uniquely affect small governments, 

including tribal governments. However, 

in developing this proposed action, EPA 

consulted with small governments 

pursuant to a plan established under 

section 203 of UMRA to address impacts 

of regulatory requirements in the rule 

that might significantly or uniquely 

affect small governments. As stated in 

sections XI.E and F of this preamble, 

EPA consulted with State, local, and 

tribal officials early in the process of 

developing the proposed regulation to 

permit them to have timely and 

meaningful input into its development 

by publishing an ANPR (73 FR 44354, 

July 30, 2008) that included PSD GHG 

tailoring options for regulating GHGs 

under the CAA. As a result, EPA 

received comments from these entities 

and took them into consideration when 

developing this proposal. 

E. Executive Order 13132—Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. These proposed 

amendments would ultimately simplify 

and reduce the burden on State and 

local agencies associated with 

implementing the PSD and title V 

operating permits programs, by 

providing that a source whose GHG 

emissions are below the proposed levels 

will not have to obtain a PSD permit or 


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title V permit. Thus, Executive Order 

13132 does not apply to this action. 

Consistent with EPA policy, EPA 

nonetheless consulted with State and 

local officials early in the process of 

developing the proposed regulation to 

permit them to have meaningful and 

timely input into its development by 

publishing an advance notice of 

proposed rulemaking (ANPR) [73 FR 

44354, July 30, 2008] that included PSD 

GHG tailoring options for regulating 

GHGs under the CAA. As a result of the 

ANPR, EPA received several comments 

from State and local government 

agencies on differing PSD GHG tailoring 

options presented in the ANPR which 

were considered in this proposal. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule from State and local 

officials. 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

Subject to the Executive Order 13175, 

entitled ‘‘Consultation and Coordination 

with Indian Tribal Governments’’ (65 FR 

67249, November 9, 2000), EPA may not 

issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the Federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

EPA consults with tribal officials early 

in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 

EPA has concluded that this action 

may have tribal implications. However, 

it will neither impose substantial direct 

compliance costs on tribal governments 

nor preempt tribal law. There are no 

tribal authorities currently issuing major 

NSR permits; however, this may change 

in the future. 

EPA consulted with tribal officials 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development by publishing an ANPR 

that included PSD GHG tailoring 

options for regulating GHGs under the 

CAA. [73 FR 44354, July 30, 2008]. As 

a result of the ANPR, EPA received 

several comments from tribal officials 

on differing PSD GHG tailoring options 

presented in the ANPR which were 

considered in this proposal. 

Although Executive Order 13175 does 

not apply to this proposed rule, EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

the Agency does not believe the 

environmental health or safety risks 

addressed by this action present a 

disproportionate risk to children. We do 

not believe this action creates any 

environmental health or safety risks. 

The public is invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early life exposure to GHGs. 

H. Executive Order 13211—Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This rule is not a ‘‘significant energy 

action’’ as defined in Executive Order 

13211, ‘‘Actions Concerning Regulations 

That Significantly Affect Energy Supply, 

Distribution, or Use’’ (66 FR 28355, May 

22, 2001) because it is not likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy. 

This action will not create any new 

requirements for sources in the energy 

supply, distribution, or use sectors. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law 

104–113, 12(d) (15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering the use of any 

voluntary consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

EPA has determined that this 

proposed rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because any impacts that it will have 

will be global in nature and will not 

affect local communities or populations 

in a manner that adversely affects the 

level of protection provided to human 

health or the environment. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(E) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

XII. Statutory Authority 

The statutory authority for this action 

is provided by sections 307(d)(7)(B), 

101, 111, 114, 116, and 301 of the CAA 

as amended (42 U.S.C. 7401, 7411, 7414, 

7416, and 7601). This action is also 

subject to section 307(d) of the CAA (42 

U.S.C. 7407(d)). 

List of Subjects 

40 CFR Part 51 

Administrative practice and 

procedure, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, 

Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

40 CFR Part 52 

Air pollution control, Carbon dioxide, 

Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, 

Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

40 CFR Part 70 

Administrative practice and 

procedure, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, 


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Intergovernmental relations, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

Administrative practice and 

procedure, Air pollution control, Carbon 

dioxide, Carbon dioxide equivalents, 

Environmental protection, Greenhouse 

gases, Hydrofluorocarbons, Methane, 

Nitrous oxide, Perfluorocarbons, 

Reporting and recordkeeping 

requirements, Sulfur hexafluoride. 

Dated: September 30, 2009. 

Lisa P. Jackson, 

Administrator. 

For reasons stated in the preamble, 

title 40, chapter I of the Code of Federal 

Regulations is proposed to be amended 

as set forth below. 

PART 51—[AMENDED] 

1. The authority citation for part 51 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

Subpart I—[Amended] 

2. Section 51.166 is amended: 

a. By revising paragraphs (b)(1)(i)(a), 

and (b)(1)(i)(b); 

b. By adding paragraph (b)(1)(i)(d); 

c. By revising paragraph (b)(23)(i); and 

d. By adding paragraphs (b)(57) and 

(b)(58). 

The revisions and additions read as 

follows: 

§ 51.166 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(1)(i) * * * 

(a) Any of the following stationary 

sources of air pollutants which emits, or 

has the potential to emit, 100 tons per 

year or more of any regulated NSR 

pollutant (except for greenhouse gases 

(as defined under paragraph (b)(57) of 

this section), except as provided under 

paragraph (b)(1)(i)(d) of this section): 

Fossil fuel-fired steam electric plants of 

more than 250 million British thermal 

units per hour heat input, coal cleaning 

plants (with thermal dryers), kraft pulp 

mills, portland cement plants, primary 

zinc smelters, iron and steel mill plants, 

primary aluminum ore reduction plants 

(with thermal dryers), primary copper 

smelters, municipal incinerators capable 

of charging more than 250 tons of refuse 

per day, hydrofluoric, sulfuric, and 

nitric acid plants, petroleum refineries, 

lime plants, phosphate rock processing 

plants, coke oven batteries, sulfur 

recovery plants, carbon black plants 

(furnace process), primary lead smelters, 

fuel conversion plants, sintering plants, 

secondary metal production plants, 

chemical process plants (which does not 

include ethanol production facilities 

that produce ethanol by natural 

fermentation included in NAICS codes 

325193 or 312140), fossil-fuel boilers (or 

combinations thereof) totaling more 

than 250 million British thermal units 

per hour heat input, petroleum storage 

and transfer units with a total storage 

capacity exceeding 300,000 barrels, 

taconite ore processing plants, glass 

fiber processing plants, and charcoal 

production plants; 

(b) Notwithstanding the stationary 

source size specified in paragraph 

(b)(1)(i)(a) of this section, any stationary 

source which emits, or has the potential 

to emit, 250 tons per year or more of a 

regulated pollutant (except for 

greenhouse gases (as defined under 

paragraph (b)(57) of this section), except 

as provided under paragraph (b)(1)(i)(d) 

of this section); or 

* * * * * 

(d) Notwithstanding any provision to 

the contrary in this section, any 

stationary source which emits, or has 

the potential to emit, at least 25,000 tpy 

CO2e of greenhouse gases, as defined 

under paragraph (b)(58) of this section. 

* * * * * 

(23)(i) Significant means, in reference 

to a net emissions increase or the 

potential of a source to emit any of the 

following pollutants, a rate of emissions 

that would equal or exceed any of the 

following rates: 

Pollutant and Emissions Rate 

Carbon monoxide: 100 tons per year 

(tpy) 

Nitrogen oxides: 40 tpy 

Sulfur dioxide: 40 tpy 

Particulate matter: 25 tpy of particulate 

matter emissions. 15 tpy of PM10

emissions. 

PM2.5: 10 tpy of direct PM2.5 emissions; 

40 tpy of sulfur dioxide emissions; 40 

tpy of nitrogen oxide emissions unless 

demonstrated not to be a PM2.5

precursor under paragraph (b)(49) of 

this section 

Ozone: 40 tpy of volatile organic 

compounds or nitrogen oxides 

Lead: 0.6 tpy 

Fluorides: 3 tpy 

Sulfuric acid mist: 7 tpy 

Hydrogen sulfide (H2S): 10 tpy 

Total reduced sulfur (including H2S): 10 

tpy 

Reduced sulfur compounds (including 

H2S): 10 tpy 

Municipal waste combustor organics 

(measured as total tetra- through octachlorinated dibenzo-p-dioxins and 

dibenzofurans): 3.2 × 10¥6 megagrams 

per year (3.5 × 10¥6 tpy) 

Municipal waste combustor metals 

(measured as particulate matter): 14 

megagrams per year (15 tpy) 

Municipal waste combustor acid gases 

(measured as sulfur dioxide and 

hydrogen chloride): 36 megagrams per 

year (40 tpy) 

Municipal solid waste landfill 

emissions (measured as nonmethane 

organic compounds): 45 megagrams 

per year (50 tpy) 

Greenhouse gases: [10,000 to 25,000] 

CO2e 

* * * * * 

(57) Greenhouse gas, or GHG, means 

carbon dioxide (CO2), methane (CH4), 

nitrous oxide (N2O), sulfur hexafluoride 

(SF6), hydrofluorocarbons (HFCs), and 

perfluorocarbons (PFCs). 

(58) Carbon dioxide equivalent, or 

CO2e, means a metric used to compare 

the emissions from various greenhouse 

gases based upon their global warming 

potential (GWP). The CO2e for a gas is 

determined by multiplying the mass of 

the gas by the associated GWP. The 

applicable GWPs and guidance on how 

to calculate a source’s GHG emissions in 

tpy CO2e can be found in EPA’s 

‘‘Inventory of U.S. Greenhouse Gas 

Emissions and Sinks,’’ which is updated 

annually under existing commitment 

under the United Nations Framework 

Convention on Climate Change 

(UNFCCC). 

* * * * * 

PART 52—[AMENDED] 

3. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

4. Section 52.21 is amended: 

a. By revising paragraphs (b)(1)(i)(a) 

and (b)(1)(i)(b); 

b. By adding paragraph (b)(1)(i)(d); 

c. By revising paragraph (b)(23)(i); and 

d. By adding paragraphs (b)(59) and 

(b)(60). 

The revisions and additions read as 

follows: 

§ 52.21 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(1)(i) * * * 

(a) Any of the following stationary 

sources of air pollutants which emits, or 

has the potential to emit, 100 tons per 

year or more of any regulated NSR 

pollutant (except for greenhouse gases 

(as defined under paragraph (b)(59) of 

this section), except as provided under 

paragraph (b)(1)(i)(d) of this section): 

Fossil fuel-fired steam electric plants of 

more than 250 million British thermal 

units per hour heat input, coal cleaning 


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plants (with thermal dryers), kraft pulp 

mills, portland cement plants, primary 

zinc smelters, iron and steel mill plants, 

primary aluminum ore reduction plants 

(with thermal dryers), primary copper 

smelters, municipal incinerators capable 

of charging more than 250 tons of refuse 

per day, hydrofluoric, sulfuric, and 

nitric acid plants, petroleum refineries, 

lime plants, phosphate rock processing 

plants, coke oven batteries, sulfur 

recovery plants, carbon black plants 

(furnace process), primary lead smelters, 

fuel conversion plants, sintering plants, 

secondary metal production plants, 

chemical process plants (which does not 

include ethanol production facilities 

that produce ethanol by natural 

fermentation included in NAICS codes 

325193 or 312140), fossil-fuel boilers (or 

combinations thereof) totaling more 

than 250 million British thermal units 

per hour heat input, petroleum storage 

and transfer units with a total storage 

capacity exceeding 300,000 barrels, 

taconite ore processing plants, glass 

fiber processing plants, and charcoal 

production plants; 

(b) Notwithstanding the stationary 

source size specified in paragraph 

(b)(1)(i) of this section, any stationary 

source which emits, or has the potential 

to emit, 250 tons per year or more of a 

regulated NSR pollutant (except for 

greenhouse gases (as defined under 

paragraph (b)(59) of this section), except 

as provided under paragraph (b)(1)(i)(d) 

of this section); or 

* * * * * 

(d) Notwithstanding any provision to 

the contrary in this section, any 

stationary source of air pollutants which 

emits, or has the potential to emit, 

25,000 tpy CO2e of greenhouse gases, as 

defined under paragraph (b)(60) of this 

section. 

* * * * * 

(23)(i) Significant means, in reference 

to a net emissions increase or the 

potential of a source to emit any of the 

following pollutants, a rate of emissions 

that would equal or exceed any of the 

following rates: 

Pollutant and Emissions Rate 

Carbon monoxide: 100 tons per year 

(tpy) 

Nitrogen oxides: 40 tpy 

Sulfur dioxide: 40 tpy 

Particulate matter: 25 tpy of particulate 

matter emissions 

PM10: 15 tpy 

PM2.5: 10 tpy of direct PM2.5 emissions; 

40 tpy of sulfur dioxide emissions; 40 

tpy of nitrogen oxide emissions unless 

demonstrated not to be a PM2.5

precursor under paragraph (b)(50) of 

this section 

Ozone: 40 tpy of volatile organic 

compounds or nitrogen oxides 

Lead: 0.6 tpy 

Fluorides: 3 tpy 

Sulfuric acid mist: 7 tpy 

Hydrogen sulfide (H2S): 10 tpy 

Total reduced sulfur (including H2S): 10 

tpy 

Reduced sulfur compounds (including 

H2S): 10 tpy 

Municipal waste combustor organics 

(measured as total tetra- through octachlorinated dibenzo-p-dioxins and 

dibenzofurans): 3.2 × 10¥6 megagrams 

per year (3.5 × 10¥6 tpy) 

Municipal waste combustor metals 

(measured as particulate matter): 14 

megagrams per year (15 tpy) 

Municipal waste combustor acid gases 

(measured as sulfur dioxide and 

hydrogen chloride): 36 megagrams per 

year (40 tpy) 

Municipal solid waste landfill 

emissions (measured as nonmethane 

organic compounds): 45 megagrams 

per year (50 tpy) 

Greenhouse gases: [10,000 to 25,000] 

CO2e 

* * * * * 

(59) Greenhouse gas, or GHG, means 

carbon dioxide (CO2), methane (CH4), 

nitrous oxide (N2O), sulfur hexafluoride 

(SF6), hydrofluorocarbons (HFCs), and 

perfluorocarbons (PFCs). 

(60) Carbon dioxide equivalent, or 

CO2e, means a metric used to compare 

the emissions from various greenhouse 

gases based upon their global warming 

potential (GWP). The CO2e for a gas is 

determined by multiplying the mass of 

the gas by the associated GWP. The 

applicable GWPs and guidance on how 

to calculate a source’s GHG emissions in 

tpy CO2e can be found in EPA’s 

‘‘Inventory of U.S. Greenhouse Gas 

Emissions and Sinks,’’ which is updated 

annually under existing commitment 

under the United Nations Framework 

Convention on Climate Change 

(UNFCCC). 

* * * * * 

5. Section 52.53 is revised to read as 

follows: 

§ 52.53 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Alabama’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by July 1, 1980 for the 

sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

6. Section 52.72 is revised to read as 

follows: 

§ 52.72 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Alaska’s plan for the attainment and 

maintenance of the national standards. 

The State included in the plan a 

regulation prohibiting idling of 

unattended motor vehicles. However, 

the plan stated that this regulation was 

included for informational purposes 

only, and was not to be considered part 

of the control strategy to implement the 

national standards for carbon monoxide. 

Accordingly, this regulation is not 

considered a part of the applicable plan. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 


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7. Section 52.123 is amended by 

adding paragraph (l) to read as follows: 

§ 52.123 Approval status. 

* * * * * 

(l)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

8. Section 52.172 is revised to read as 

follows: 

§ 52.172 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Arkansas’ plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Further, the Administrator finds that the 

plan satisfies all requirements of Part D 

of the Clean Air Act, as amended in 

1977, except as noted below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

9. Section 52.223 is amended by 

adding paragraph (f) to read as follows: 

§ 52.223 Approval status. 

* * * * * 

(f)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

10. Section 52.323 is revised to read 

as follows: 

§ 52.323 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Colorado’s plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D, Title 1, of the Clean Air Act 

as amended in 1977, except as noted 

below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

11. Section 52.373 is amended by 

adding paragraph (c) to read as follows: 

§ 52.373 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

12. Section 52.422 is amended by 

adding paragraph (c) to read as follows: 

§ 52.422 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

13. Section 52.472 is amended by 

adding paragraph (g) to read as follows: 

§ 52.472 Approval status. 

* * * * * 

(g)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 


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14. Section 52.522 is revised to read 

as follows: 

§ 52.522 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Florida’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. In addition, continued 

satisfaction of the requirements of Part 

D, for the ozone portion of the SIP 

depends on the adoption and submittal 

of RACT requirements by July 1, 1980 

for those sources covered by CTGs 

issued between January 1978 and 

January 1979 and adoption and 

submittal by each subsequent January of 

additional RACT requirements for 

sources covered by CTGs issued by the 

previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

15. Section 52.572 is revised to read 

as follows: 

§ 52.572 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Georgia’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

16. Section 52.623 is revised to read 

as follows: 

§ 52.623 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Hawaii’s plan for attainment and 

maintenance of the national standards. 

The State included various provisions 

in its plan to provide for the attainment 

of State ambient air quality standards. 

As described in the Governor’s letters of 

January 28, May 8, and May 22, 1972, 

these provisions were included for 

information purposes only and were not 

to be considered a part of the plan to 

implement national standards. 

Accordingly, these additional 

provisions are not considered a part of 

the applicable plan. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

17. Section 52.673 is revised to read 

as follows: 

§ 52.673 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Idaho’s plan for the attainment and 

maintenance of the national standards. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

18. Section 52.722 is amended by 

adding paragraph (d) to read as follows: 

§ 52.722 Approval status. 

* * * * * 

(d)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

19. Section 52.773 is amended by 

adding paragraph (k) to read as follows: 

§ 52.773 Approval status. 

* * * * * 

(k)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 


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significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

20. Section 52.822 is amended by 

adding paragraph (b) to read as follows: 

§ 52.822 Approval status. 

* * * * * 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

21. Section 52.873 is amended by 

adding paragraph (d) to read as follows: 

§ 52.873 Approval status. 

* * * * * 

(d)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

22. Section 52.923 is amended by 

adding paragraph (c) to read as follows: 

§ 52.923 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

23. Section 52.986 is amended by 

adding paragraph (c) to read as follows: 

§ 52.986 Significant deterioration of air 

quality. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

24. Section 52.1022 is revised to read 

as follows: 

§ 52.1022 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Maine’s plan, as identified in § 52.1020, 

for the attainment and maintenance of 

the national standards under section 

110 of the Clean Air Act. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

25. Section 52.1073 is amended by 

adding paragraph (h) to read as follows: 

§ 52.1073 Approval status. 

* * * * * 

(h)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

26. Section 52.1123 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1123 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

27. Section 52.1172 is revised to read 

as follows: 

§ 52.1172 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Michigan’s plan for the attainment and 

maintenance of the National Ambient 

Air Quality Standards under section 110 

of the Clean Air Act. Furthermore, the 


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Administrator finds the plan satisfies all 

requirements of Part D, Title I of the 

Clean Air Act as amended in 1977, 

except as noted below. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by July 1, 1980 for the 

sources covered by CTGs between 

January 1978 and January 1979 and 

adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

28. Section 52.1223 is revised to read 

as follows: 

§ 52.1223 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Minnesota’s plans for the attainment 

and maintenance of the national 

standards under section 110 of the 

Clean Air Act. Furthermore, the 

Administrator finds the plan satisfies all 

requirements of Part D, Title 1, of the 

Clean Air Act as amended in 1977, 

except as noted below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

29. Section 52.1272 is revised to read 

as follows: 

§ 52.1272 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Mississippi’s plan for the attainment 

and maintenance of national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

30. Section 52.1323 is amended by 

adding paragraph (n) to read as follows: 

§ 52.1323 Approval status. 

* * * * * 

(n)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

31. Section 52.1372 is revised to read 

as follows: 

§ 52.1372 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Montana’s plans for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

32. Section 52.1422 is revised to read 

as follows: 

§ 52.1422 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Nebraska’s plan for the attainment and 

maintenance of the national standards. 

No action is taken on the new source 

review regulations to comply with 

section 172(b)(6) and section 173 of the 

Clean Air Act as amended in 1977, and 

40 CFR 51.18(j). 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 


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33. Section 52.1472 is amended by 

adding paragraph (d) to read as follows: 

§ 52.1472 Approval status. 

* * * * * 

(d)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

34. Section 52.1522 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1522 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

35. Section 52.1573 is revised to read 

as follows: 

§ 52.1573 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

New Jersey’s plans for attainment and 

maintenance of the national ambient air 

quality standards under section 110 of 

the Clean Air Act. Furthermore, the 

Administrator finds that the plan 

satisfies all requirements of Part D, Title 

I, of the Clean Air Act, as amended in 

1977, except as noted below in 

§ 52.1581. In addition, continued 

satisfaction of the requirements of Part 

D for the ozone portion of the SIP 

depends on the adoption and submittal 

of RACT requirements by July 1, 1980 

for the sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

36. Section 52.1622 is revised to read 

as follows: 

§ 52.1622 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

New Mexico’s plan for the attainment 

and maintenance of the national 

standards under section 110 of the 

Clean Air Act. Further, the 

Administrator finds that the plan 

satisfies all requirements of Part D of the 

Clean Air Act, as amended in 1977, 

except as noted below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

37. Section 52.1673 is amended by 

adding paragraph (b) to read as follows: 

§ 52.1673 Approval status. 

* * * * * 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

38. Section 52.1772 is amended by 

adding paragraph (c) to read as follows: 

§ 52.1772 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

39. Section 52.1822 is revised to read 

as follows: 

§ 52.1822 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

the North Dakota plan for the attainment 

and maintenance of the national 

standards. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 


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25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

40. Section 52.1873 is revised to read 

as follows: 

§ 52.1873 Approval status. 

(a) With the exceptions set forth in 

this subpart the Administrator approves 

Ohio’s plan for the attainment and 

maintenance of the National Ambient 

Air Quality Standards under section 110 

of the Clean Air Act. Furthermore, the 

Administrator finds the plan satisfies all 

the requirements of Part D, Title 1 of the 

Clean Air Act as amended in 1977, 

except as noted below. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by January 1, 1981 for the 

sources covered by CTGs between 

January 1978 and January 1979 and 

adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

41. Section 52.1922 is revised to read 

as follows: 

§ 52.1922 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Oklahoma’s plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D, Title 1, of the Clean Air Act 

as amended in 1977, except as noted 

below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

42. Section 52.1972 is revised to read 

as follows: 

§ 52.1972 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Oregon’s plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

43. Section 52.2023 is amended by 

adding paragraph (l) to read as follows: 

§ 52.2023 Approval status. 

* * * * * 

(l)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

44. Section 52.2072 is revised to read 

as follows: 

§ 52.2072 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Rhode Island’s plan, as identified in 

§ 52.2070 of this subpart, for the 

attainment and maintenance of the 

national standards under section 110 of 

the Clean Air Act. Furthermore, the 

Administrator finds the plan satisfies all 

requirements of Part D, Title I, of the 

Clean Air Act, as amended in 1977, 

except as noted below. In addition, 

continued satisfaction of the 

requirements of Part D for the ozone 

portion of the SIP depends on the 

adoption and submittal of RACT 

requirements by January 1, 1981 for the 

sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January as additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

45. Section 52.2122 is amended by 

adding paragraph (c) to read as follows: 


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§ 52.2122 Approval status. 

* * * * * 

(c)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

46. Section 52.2172 is revised to read 

as follows: 

§ 52.2172 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

South Dakota’s plan as meeting the 

requirements of section 110 of the Clean 

Air Act, as amended in 1977. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D of the Clean Air Act, as 

amended in 1977. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

47. Section 52.2222 is amended by 

adding paragraph (d) to read as follows: 

§ 52.2222 Approval status. 

* * * * * 

(d)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

48. Section 52.2273 is revised to read 

as follows: 

§ 52.2273 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Texas’ plan for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D, Title 1, of the Clean Air Act 

as amended in 1977, except as noted 

below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

49. Section 52.2323 is revised to read 

as follows: 

§ 52.2323 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Utah’s plan as meeting the requirements 

of section 110 of the Clean Air Act as 

amended in 1977. Furthermore, the 

Administrator finds that the plan 

satisfies all requirements of Part D, Title 

1, of the Clean Air Act as amended in 

1977, except as noted below. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

50. Section 52.2372 is revised to read 

as follows: 

§ 52.2372 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Vermont’s plan as identified in 

§ 52.2370 for the attainment and 

maintenance of the national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act, as 

amended in 1977, except as noted 

below. In addition, continued 

satisfaction of the requirements of Part 

D for the ozone portion of the SIP 

depends on the adoption and submittal 

of RACT requirements by July 1, 1980 

for the sources covered by CTGs issued 

between January, 1978 and January, 

1979 and adoption and submittal by 

each subsequent January of additional 

RACT requirements for sources covered 

by CTGs issued by the previous January. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

51. Section 52.2423 is amended by 

adding paragraph (t) to read as follows: 


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§ 52.2423 Approval status. 

* * * * * 

(t)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

52. Section 52.2473 is revised to read 

as follows: 

§ 52.2473 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Washington’s plan for the attainment 

and maintenance of National Standards 

under section 110 of the Clean Air Act. 

The regulations included in the SIP (see 

Table 52.2479) are applicable statewide 

unless otherwise noted in the regulation 

itself. Furthermore, the Administrator 

finds that the plan as identified in 

§ 52.2470 satisfies requirements of Part 

D, Title 1, of the Clean Air act as 

amended in 1977, except as noted in the 

following sections. Continued 

satisfaction of the requirements of Part 

D for the ozone portion of the SIP 

depends on the adoption and submittal 

of RACT requirements by July 1, 1980 

for the sources covered by CTGs issued 

between January 1978 and January 1979 

and adoption and submittal by each 

subsequent January of additional RACT 

requirements for sources covered by 

CTGs issued by the previous January. 

New source review permits pursuant to 

section 173 of CAA will not be deemed 

valid by EPA unless the provisions of 

section V of the emission offset 

interpretive rule published on January 

16, 1979 (44 FR 3274) are met. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

53. Section 52.2522 is amended by 

adding paragraph (j) to read as follows: 

§ 52.2522 Approval status. 

* * * * * 

(j)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

54. Section 52.2572 is revised to read 

as follows: 

§ 52.2572 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Wisconsin’s plans for the attainment 

and maintenance of the National 

Ambient Air Quality Standards under 

section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

the plans satisfy all requirements of Part 

D, Title I, of the Clean Air Act as 

amended in 1977, except as noted 

below. In addition, continued 

satisfaction of the requirements of Part 

D for the Ozone portion of the State 

Implementation Plan depends on the 

adoption and submittal of RACT 

requirements on: 

(1) Group III Control Techniques 

Guideline sources within 1 year after 

January 1st following the issuance of 

each Group III control technique 

guideline; and 

(2) Major (actual emissions equal or 

greater than 100 tons VOC per year) 

non-control technique guideline sources 

in accordance with the State’s schedule 

contained in the 1982 Ozone SIP 

revision for Southeastern Wisconsin. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

55. Section 52.2622 is revised to read 

as follows: 

§ 52.2622 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Wyoming’s plans as meeting the 

requirements of section 110 of the Clean 

Air Act, as amended in 1977. 

Furthermore, the Administrator finds 

that the plans satisfy the requirements 

of Part D, Title I, of the Clean Air Act. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

56. Section 52.2672 is revised to read 

as follows: 

§ 52.2672 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Guam’s plan for the attainment and 

maintenance of the National Standards. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 


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GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

57. Section 52.2722 is revised to read 

as follows: 

§ 52.2722 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

Puerto Rico’s plans for the attainment 

and maintenance of national standards 

under section 110 of the Clean Air Act. 

Furthermore, the Administrator finds 

that the plan satisfies all requirements 

of Part D, Title I, of the Clean Air Act, 

as amended in 1977. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

58. Section 52.2772 is revised to read 

as follows: 

§ 52.2772 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

the U.S. Virgin Islands plan for 

attainment and maintenance of the 

national standards. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

59. Section 52.2822 is revised to read 

as follows: 

§ 52.2822 Approval status. 

(a) With the exceptions set forth in 

this subpart, the Administrator approves 

American Samoa’s plan for the 

attainment and maintenance of the 

national standards. 

(b)(1) Insofar as the PSD permitting 

threshold provisions concern sources of 

GHG emissions, EPA limits its approval 

of such provisions to the extent they 

subject to PSD requirements sources of 

GHG emissions that equal or exceed 

25,000 tpy CO2e. EPA takes no action on 

the PSD permitting threshold provisions 

to the extent they subject to PSD 

requirements sources of GHG emissions 

that are less than 25,000 tpy CO2e. 

(2) Insofar as the PSD significance 

levels concern sources of GHG 

emissions, EPA limits its approval of 

such provisions to the extent those 

provisions treat as significant GHG 

emissions increases that equal or exceed 

[10,000 to 25,000] tpy CO2e. EPA takes 

no action on the PSD significance level 

provisions to the extent they treat as 

significant GHG emissions increases less 

than [10,000 to 25,000] tpy CO2e. 

PART 70—[AMENDED] 

60. The authority citation for part 70 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

61. Section 70.2 is amended to read as 

follows: 

a. By adding definitions in 

alphabetical order for carbon dioxide 

equivalent and greenhouse gas; 

b. By revising paragraph (2) of the 

definition for major source; and 

c. By adding paragraph (4) to the 

definition for major source. 

§ 70.2 Definitions. 

* * * * * 

Carbon dioxide equivalent, or CO2e, 

means a metric used to compare the 

emissions from various greenhouse 

gases based upon their global warming 

potential (GWP). The CO2e for a gas is 

determined by multiplying the mass of 

the gas by the associated GWP. The 

applicable GWPs and guidance on how 

to calculate a source’s GHG emissions in 

tpy CO2e can be found in EPA’s 

‘‘Inventory of U.S. Greenhouse Gas 

Emissions and Sinks,’’ which is updated 

annually under existing commitment 

under the United Nations Framework 

Convention on Climate Change 

(UNFCCC). 

* * * * * 

Greenhouse gas, or GHG, means 

carbon dioxide (CO2), methane (CH4), 

nitrous oxide (N2O), sulfur hexafluoride 

(SF6), hydrofluorocarbons (HFCs), and 

perfluorocarbons (PFCs). 

* * * * * 

Major source * * * 

(2) A major stationary source of air 

pollutants (except for greenhouse gases, 

except as otherwise provided in this 

section) as defined in section 302 of the 

Act, that directly emits, or has the 

potential to emit, 100 tpy or more of any 

air pollutant (including any major 

source of fugitive emissions of any such 

pollutant, as determined by rule by the 

Administrator). The fugitive emissions 

of a stationary source shall not be 

considered in determining whether it is 

a major stationary source for the 

purposes of section 302(j) of the Act, 

unless the source belongs to one of the 

following categories of stationary 

source: 

* * * * * 

(4) A stationary source that directly 

emits, or has the potential to emit, 

25,000 tpy CO2e or more of greenhouse 

gases that are subject to regulation 

under the Act. 

* * * * * 

62. Appendix A to Part 70 is amended 

as follows: 

a. By revising the introductory text; 

b. By adding paragraph (d) under 

Alabama; 

c. By adding paragraph (c) under 

Alaska; 

d. By adding paragraph (e) under 

Arizona; 

e. By adding paragraph (d) under 

Arkansas; 

f. By adding paragraph (jj) under 

California; 

g. By adding paragraph (c) under 

Colorado; 

h. By adding paragraph (c) under 

Connecticut; 

i. By adding paragraph (d) under 

Delaware; 

j. By adding paragraph (d) under 

District of Columbia; 

k. By adding paragraph (c) under 

Florida; 

l. By adding paragraph (c) under 

Georgia; 

m. By adding paragraph (d) under 

Hawaii; 


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n. By adding paragraph (c) under 

Idaho; 

o. By adding paragraph (c) under 

Illinois; 

p. By adding paragraph (d) under 

Indiana; 

q. By adding paragraph (k) under 

Iowa; 

r. By adding paragraph (e) under 

Kansas; 

s. By adding paragraph (c) under 

Kentucky; 

t. By adding paragraph (c) under 

Louisiana; 

u. By adding paragraph (c) under 

Maine; 

v. By adding paragraph (d) under 

Maryland; 

w. By adding paragraph (c) under 

Massachusetts; 

x. By adding paragraph (c) under 

Michigan; 

y. By adding paragraph (d) under 

Minnesota; 

z. By adding paragraph (c) under 

Mississippi; 

aa. By adding paragraph (x) under 

Missouri; 

bb. By adding paragraph (c) under 

Montana; 

cc. By adding paragraph (j) under 

Nebraska, City of Omaha, LincolnLancaster County Health Department; 

dd. By adding paragraph (d) under 

Nevada; 

ee. By adding paragraph (c) under 

New Hampshire; 

ff. By adding paragraph (e) under New 

Jersey; 

gg. By adding paragraph (g) under 

New Mexico; 

hh. By adding paragraph (e) under 

New York; 

ii. By adding paragraph (e) under 

North Carolina; 

jj. By adding paragraph (d) under 

North Dakota; 

kk. By adding paragraph (d) under 

Ohio; 

ll. By adding paragraph (c) under 

Oklahoma; 

mm. By adding paragraph (c) under 

Oregon; 

nn. By adding paragraph (c) under 

Pennsylvania; 

oo. By adding paragraph (c) under 

Puerto Rico; 

pp. By adding paragraph (c) under 

South Carolina; 

qq. By adding paragraph (c) under 

Rhode Island; 

rr. By adding paragraph (c) under 

South Dakota; 

ss. By adding paragraph (f) under 

Tennessee; 

tt. By adding paragraph (d) under 

Texas; 

uu. By adding paragraph (c) under 

Utah; 

vv. By adding paragraph (c) under 

Vermont; 

ww. By adding paragraph (c) under 

the Virgin Islands; 

xx. By adding paragraph (c) under 

Virginia; 

yy. By adding paragraph (j) under 

Washington; 

zz. By adding paragraph (f) under 

West Virginia; 

aaa. By adding paragraph (c) under 

Wisconsin; and 

bbb. By adding paragraph (c) under 

Wyoming. 

Appendix A to Part 70—Approval of 

State and Local Operating Permits 

This appendix provides information on the 

approval status of State and Local operating 

Permit Programs. An approved State part 70 

program applies to all part 70 sources, as 

defined in that approved program, within 

such State, except for any source of air 

pollution over which a federally recognized 

Indian Tribe has jurisdiction. EPA limits its 

approval of the State permitting threshold 

provisions to the extent those provisions 

require permits for sources of GHG emissions 

that equal or exceed 100 tpy CO2e. 

Alabama 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Alaska 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Arizona 

* * * * * 

(e) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Arkansas 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

California 

* * * * * 

(jj) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Colorado 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Connecticut 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Delaware 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

District of Columbia 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Florida 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Georgia 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 


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for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Hawaii 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Idaho 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Illinois 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Indiana 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Iowa 

* * * * * 

(k) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Kansas 

* * * * * 

(e) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Kentucky 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Louisiana 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Maine 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Maryland 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Massachusetts 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Michigan 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Minnesota 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Mississippi 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Missouri 

* * * * * 

(x) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Montana 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Nebraska; City of Omaha; Lincoln-Lancaster 

County Health Department 

* * * * * 

(j) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Nevada 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

New Hampshire 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 


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New Jersey 

* * * * * 

(e) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

New Mexico 

* * * * * 

(g) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

New York 

* * * * * 

(e) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

North Carolina 

* * * * * 

(e) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

North Dakota 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Ohio 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Oklahoma 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Oregon 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Pennsylvania 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Puerto Rico 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Rhode Island 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

South Carolina 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

South Dakota 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Tennessee 

* * * * * 

(f) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Texas 

* * * * * 

(d) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Utah 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Vermont 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Virgin Islands 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Virginia 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Washington 

* * * * * 

(j) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 


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for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

West Virginia 

* * * * * 

(f) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Wisconsin 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e. 

Wyoming 

* * * * * 

(c) Insofar as the State permitting threshold 

provisions concern sources of GHG 

emissions, EPA limits its approval of such 

provisions to the extent they require permits 

for sources of GHG emissions that equal or 

exceed 25,000 tpy CO2e. EPA takes no action 

on such provisions to the extent they require 

permits for sources of GHG emissions that are 

less than 25,000 tpy CO2e 

PART 71—[AMENDED] 

63. The authority citation for part 71 

continues to read as follows: 

Authority: 42 U.S.C. 7401, et seq. 

64. Section 71.2 is amended to 

follows: 

a. By adding definitions in 

alphabetical order for carbon dioxide 

equivalent and greenhouse gas; 

b. By revising paragraph (2) of the 

definition for major source; and 

c. By adding paragraph (4) to the 

definition for major source. 

§ 71.2 Definitions. 

* * * * * 

Carbon dioxide equivalent, or CO2e, 

means a metric used to compare the 

emissions from various greenhouse 

gases based upon their global warming 

potential (GWP). The CO2e for a gas is 

determined by multiplying the mass of 

the gas by the associated GWP. The 

applicable GWPs and guidance on how 

to calculate a source’s GHG emissions in 

tpy CO2e can be found in EPA’s 

‘‘Inventory of U.S. Greenhouse Gas 

Emissions and Sinks,’’ which is updated 

annually under existing commitment 

under the United Nations Framework 

Convention on Climate Change 

(UNFCCC). 

* * * * * 

Greenhouse gas, or GHG, means 

carbon dioxide (CO2), methane (CH4), 

nitrous oxide (N2O), sulfur hexafluoride 

(SF6), hydrofluorocarbons (HFCs), and 

perfluorocarbons (PFCs). 

* * * * * 

Major source * * * 

(2) A major stationary source of air 

pollutants (except for greenhouse gases, 

except as otherwise provided in this 

section), as defined in section 302 of the 

Act, that directly emits or has the 

potential to emit, 100 tpy or more of any 

air pollutant (including any major 

source of fugitive emissions of any such 

pollutant, as determined by rule by the 

Administrator). The fugitive emissions 

of a stationary source shall not be 

considered in determining whether it is 

a major stationary source for the 

purposes of section 302(j) of the Act, 

unless the source belongs to one of the 

following categories of stationary 

source: 

* * * * * 

(4) A stationary source that directly 

emits, or has the potential to emit, 

25,000 tpy CO2e or more of greenhouse 

gases that are subject to regulation 

under the Act. 

* * * * * 

[FR Doc. E9–24163 Filed 10–23–09; 8:45 am] 

BILLING CODE 6560–50–P 


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